LIBRARY 


UNIVERSITY  OF  CALIFORNIA. 


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v 


"A  PERFECT  MARRIAGE  IS  AS  RARE  AS 
PERFECT  LOVE." 

DINAH   MULOCK 


THE  EFFECT  OF  EACH  ON  PER- 
SONAL STATUS  AND  PROPERTY 
RIGHTS,  WITH  A  CONSIDERATION 


OF- 


FRAUDULENT  DIVORCES  AND 

THE  ETHICS  OF  DIVORCE 

FOR  POPULAR  AND 

PROFESSIONAL  USE 


BY  HENRY  C.  WHITNEY 


COUNSELOR  OF  THE  SUPREME  COURT 
F  THE  UNITED  STATES       . 


MDCCCXGIV 


Copyright,  1894 
By  Henry  C.  Whitney 


TABLE  OF  CHAPTERS. 


I.  PRELIMINARY,          .         .         .         .  .         .         .7 

II.  MARRIAGE,  ........        16 

LICENSE  AND  CONSENT,         .         .         .         .         .         .60 

MARRIAGE  AFTER  DIVORCE,          .....         64 

VALIDITY  OF  MARRIAGES  CONTRACTED  BEYOND  STATE,    .     .     65 

FORM  OF  CEREMONY, 66 

III.  DIVORCE, 71 

EGYPT'S  DIVORCE  LAWS,  .....         76 

STATUTORY  PROVISIONS  CONCERNING  DIVORCE,          .         .     86 
CLASSIFICATION  OF  CAUSES  FOR  DIVORCE,      .         .         .       104 

THE  DOCTRINE  OF  ABSENCE, 108 

ADULTERY,        ........       114 

CRUELTY,  ........  118 

IMPOTENCE,       .  .         .         .         .         .  125 

DESERTION, 129 

FRAUD,  FORCE,  ERROR,  MISTAKE,  DURESS,  ,         .       132 

PREGNANCY  BEFORE  MARRIAGE,      .          .          .          .          .   134 
GROSS  NEGLECT  OF  DUTY,          .....       135 

INSANITY, 137 

MENTAL  WEAKNESS  OR  IDIOCY,  ....       137 

SODOMY,     .........  138 

INTOLERABLE  TREATMENT  OR  OFFERING  INDIGNITIES,      .       139 
FAILURE  TO  SUPPORT,  .......  140 

MISCEGENATION,        .         .         .         .         .         .         .140 

JOINING  RELIGIOUS  SECT  WHICH  DENIES  MARRIAGE,          .  142 
CONVICTION  OF,  OR  IMPRISONMENT  FOR,  CRIME,      .         .       142 
INCOMPATIBILITY  OF  TEMPER,  ETC.,          ....  142 

MISCELLANEOUS,      .          .         .         .         .         .         .       143 

IV.  DEFENSES, .         .144 

COLLUSION,      ........       146 

CONDONATION,     ........  148 

CONNIVANCE,  150 

RECRIMINATION,  .......   152 

LIMITATION,  LACHES,  DELAY  AND  INSINCERITY,       .        .       154 
STATUTORY  LIMITATION  ......   155 

V.  FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE,     .        .         .       157 


t 


TABLE  OF  CHAPTERS. 


VI.  DIVORCE  LAW  IN  EUROPE  AND  CANADA, 


VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

BADEN,    . 

ELSASS  LOTHRINGEN, 
XV.  DIVORCE  LAW  IN  SAXONY, 


FRANCE, 

BELGIUM, 

AUSTRIA, 

HUNGARY, 

SWITZERLAND, 

SWEDEN, 

DENMARK, 

GERMAN  EMPIRE, 


WURTEMBURG, 

PRUSSIA, 

HAMBURG, 

NETHERLANDS, 

ROUMANIA. 

RUSSIA, 

POLAND, 

FINLAND,     . 

ITALY, 

NOVA  SCOTIA, 

NEW  BRUNSWICK. 

PRINCE  EDWARD'S  ISLAND, 

BRITISH  COLUMBIA,    . 


XVI. 

XVII. 

XVIII. 

XIX. 

XX. 

XXI. 

XXII. 

XXIII. 

XXIV. 

XXV. 

XXVI. 

XXVII. 

XXVIII. 

XXIX.  THE  "UTAH"  DIVORCE  LAW, 
XXX.  JURISDICTION,  ..... 
XXXI.  THE  PARTIES,        ... 
XXXII.  OF  THE  RESIDENCE  REQUIRED, 

XXXIII.  THE  LAW  OF  PLACE,     .... 

XXXIV.  AN  EXPOSITION  OF  FRAUDULENT  DIVORCES, 
XXXV.  PRACTICE  AND  PRECEDENTS, 

XXXVI.  OF  THE  COURTS,         .... 

XXXVII.  ALIMONY, 

XXXVIII.  CHILDREN, 

XXXIX.  PROPERTY  RIGHTS,         .... 

XL.  DOWER,          .  . 

XLI.  "Voio,"  "VOIDABLE,"  AND  NULLITY, 
XLII.  LEGISLATIVE  DIVORCES, 
XLIII.  SEPARATION  UNDER  A  CONTRACT,     . 
XLIV.  BREACH  OF  PROMISE  OF  MARRIAGE, 
XLV.  THE  ETHICS  OF  DIVORCE, 


195 

196 

197 

197 

198 

199 

200 

201 

201 

201 

202 

202 

202 

203 

204 

204 

204 

204 

204 

205 

205 

205 

205 

205 

206 

207 

209 

233 

237 

243 

253 

272 

299 

302 

309 

316 

322 

327 

342 

344 

347 

349 


PREFACE. 

In  an  active  law  practice  extending  over  a  period  of 
thirty-five  years,  I  have  brought  in  courts,  and  disposed  of, 
very  many  cases  of  divorce,  and  have  advised  concerning  a 
still  greater  number  of  cases,  in  which  divorces  were  desired, 
but  in  which  suits  were  not  brought.  And  these  experiences 
have  convinced  me  that  this  branch  of  law  is  quite  as  honor- 
able inherently,  and  equally  as  necessary  and  proper  as  any 
other  branch  which  deals  with  personal  rights  and  wrongs  ; 
and  that  while  it  is  a  disagreeable  and  unprofitable  line  of 
practice,  yet  that  honorable  and  high-minded  practitioners 
owe  it  to  their  profession  to  not  disdain,  disparage  and  avoid 
it,  as  is  generally  done,  but  to  include  it  in  their  usual 
work,  and,  by  thus  giving  it  a  respectable  standing  in  the 
profession,  to  suppress  the  charlatans  and  quacks  who 
monopolize  and  degrade  it,  and  make  it  a  pariah  in  a 
responsible  and  dignified  law  practice.  I  am  satisfied  that 
the  legal  profession,  by  placing  this  department  on  the  same 
social  plane  that  they  do  the  writ  of  habeas  corpus,  the 
administration  of  estates,  or  the  management  of  ordinary 
litigation,  and,  by  giving  courageous  and  unwelcome  advice 
to  those  who  tend  to  error  in  this  bye  and  forbidden  path, 
would  do  very  much  to  eviscerate  the  abuse  of  wholesome 
laws,  which  have  made  this  subject  so  odious  and  reprehen- 
sible. If  reputable  practitioners  alone  could  manage  and 
control  this  business  the  shysters  would  soon  find  their  avo- 
cations gone,  and  fraudulent  divorces,  now  so  frequent,  would 
be  reduced  to  a  minimum,  for  the  abuse  of  the  divorce  system 
or  institution  is  not  in  the  laws  as  they  exist,  but  in  the 
abuse  of  the  law  in  practice.  In  the  method  suggested  there 
would  be  a  reform  in  a  double  sense— -first,  in  the  law  office ; 


PKEFACE. 

second,  in  the  administration  in  courts ;  for  if  reputable  law- 
yers would  advise  against  fraudulent  divorces,  the  num- 
ber of  such  divorces  attempted  would  be  greatly  diminished, 
and  courts  would  be  more  sedulous  to  check  them,  also,  when 
they  appeared  in  court. 

An  uninformed  person  would  be  astonished  to  learn  of  the 
villainy  practiced  in  divorce  law,  as  administered  for  the  past 
forty  years.  It  seems  somehow  to  be  the  bete  noir  of  the  legal 
profession,  and  the  reasons  for  it  are,  as  I  suppose,  that  it  is 
not  profitable,  and.  that  the  clients,  especially  the  female 
element,  are  unbusiness-like  and  difficult  to  advise  with,  and, 
when  responsible  advice  is  given  not  to  their  liking,  they  seek 
more  palatable  advice  elsewhere.  They  think,  as  a  rule,  that 
the  law  should  afford  a  panacea  for  their  ills,  and  it  is  difficult 
and  disagreeable  to  instruct  them  otherwise.  A  campaign  of 
education  should  be  made  by  our  profession,  in  this  matter, 
and  the  bar  should  be  fearless  in  venturing  responsible 
advice,  and  equally  brave  in  charging  for  it,  for  nothing 
degrades  an  element  of  law  practice  so  much  as  ignorance  of, 
or  indifference  to  it,  the  refusal  or  inability  to  properly 
advise  or  act,  and  the  equal  carelessness  or  negligence  to 
properly  charge  for  advice.  The  liberty,  custody  of  children, 
property  rights  and  peace  of  mind  of  large  numbers  of  our 
people  are  involved  in  this  disagreeable  subject  with  an  ill 
name.  It  would  be  heroism  in  our  profession  to  elevate  the 
standard  of  law  practice  and  popular  opinion  in  reference 
thereto,  for  divorce  is  here  to  stay,  and  the  legal  profession 
can  determine  whether  it  shall  be  managed  by  the  sober  arts 
of  respectable  administration,  or  by  the  maladroit  devices  of 
malpractice. 

CHICAGO,  May  1st,  1893. 


PKELIMINABY. 


All  good  reasons  and  every  element  of  propriety  concur 
that  the  subject  of  Divorce  should  be  discussed  by  the  legal 
profession  in  a  dignified  and  candid  manner,  and  entertained 
by  the  public  at  large  in  a  generous  and  liberal  spirit. 

For  divorce  is  an  institution  of  the  nineteenth  century,  as 
well  defined  and  as  firmly  intrenched  in  society  as  that  of 
marriage ;  and  while  it  has  always  been  known  and  practiced 
since  the  era  of  organized  society,  it  has  attained  its  highest 
development  in  this  age  of  the  greatest  enlightenment,  and  in 
this  land  of  the  utmost  freedom  of  conscience  and  action. 

Our  legislatures,  acting  in  harmony  with  the  spirit  of  the 
age,  make,  amend  and  change  laws  on  this  interesting  social 
subject ;  and  our  courts,  even  of  the  highest  resort,  expound, 
interpret  and  enforce  those  laws.  If,  as  sometimes  occurs, 
some  fossilized  judge,  with  antique  ideas,  attempts  to  abridge 
or  limit  its  legitimate  exercise,  he  soon  discovers  his  efforts 
to  be  in  vain — the  current  flows  on  unchecked,  and  hardly  a 
ripple  bears  witness  of  his  efforts  at  repression  or  reform. 
The  names  of  people  from  every  rank  and  grade  of  society 
appear  on  our  divorce  dockets ;  and  if  divorce  be  an  unneces- 
sary evil  (which  we  do  not  believe),  it  is  one  for  which  gen- 
eral society  is  responsible,  and  indicates  either  the  progress 
and  humanity,  or  the  demoralization,  of  the  age. 

While  there  is  a  general  concensus  of  opinion  in  the 
enlightened  world  in  favor  of  the  institution  of  divorce,  the 
progress  of  the  age  has  not  made  the  least  impression  on  two 
of  the  longest  established  and  most  powerful  institutions  of 
this  age  and  nation,  viz. :  the  Roman  Catholic  church  and  the 


8  MARKIAGE  AND  DIVOECE. 

State  of  South  Carolina,  neither  of  which  recognizes  the 
institution  at  all ;  but,  however  much  we  may  respect  the 
sincerity  and  devotion  of  the  former,  it  should  furnish  no 
guide  for  us  in  a  matter  which  the  genius  of  our  laws  has 
determined  to  be  purely  a  civil  contract,  while  the  political 
heresies  of  the  latter  ought  to  bar  it  out  as  a  safe  guide  in 
any  matter  of  civil  polity.  We  are  even  justified  in  selecting 
this  State  as  affording  a  gauge  of  the  sexual  morality  or 
immorality  likely  to  obtain  in  a  community  where  divorce  is 
eschewed;  and,  accordingly,  there  exists  among  its  statutes 
the  following  law,  which  has  stood  unchallenged  for  a 
century,  to-wit : 

SOUTH  CAROLINA  STATUTE. 

"  If  any  person  *  *  *  •  shall  have  already  begotten, 
"  or  shall  hereafter  beget,  any  bastard  child  or  children,  or 
"  shall  live  in  adultery  with  a  woman,  the  said  person  having 
"  a  wife  or  lawful  children  of  his  own  living,  and  give  or  set- 
tle, etc.,  for  the  use  and  benefit  of  said  woman  with  whom 
"  he  lives  in  adultery,  or  of  his  bastard  child  or  children,  any 
"  larger  or  greater  portion  of  the  clear  value  of  his  estate, 
"  etc.,  than  one-fourth  part  thereof,  such  deed,  etc.,  is 
"  hereby  declared  to  be  null  and  void  for  so  much  *  *  * 
"  as  shall  or  may  exceed  such  one-fourth,"  etc. 
and  in  the  enforcement  of  which  its  Supreme  court,  composed 
of  judges  of  great  legal  learning,  scrupulous  honor  and 
austere  morals,  thus  have  moralized : 

COMMENTS    ON   THEIR   STATUTE. 

"It  is  not  the  intention  or  the  effect  of  the  law  to  encour- 
"age  vice  and  immorality,  or  to  legalize  corruption.  It 
"recognizes  a  right  in  every  man  to  make  reparation  to 
"injured  innocence,  or  injured  reputation.  *  *  *  It 
"does  not  confer  on  married  men  the  exclusive  privilege  of 
«  keeping  mistresses ;  on  the  contrary,  when  one  becomes  so 
"  forgetful  of  the  duty  which  he  owes  to  himself,  to  society 
"  and  his  family,  it  prohibits  him  from  giving  the  whole  of 


PEELIMINAEY.  9 

"  his  property  to  such  a  woman  in  exclusion  of  his  wife  and 
"  children,'9  *  *  *  "  and  leaves  him,  nevertheless,  to 
"  judge  whether  the  object  of  his  criminal  intercourse  ought 
"not  also  to  be  the  object  of  his  bounty,  and  to  determine, 
"  within  certain  restrictions,  of  the  nature  and  extent  of  the 
"  compensation  which  she  deserves.  And  although  it  will 
"sometimes  happen  that  a  portion  of  a  man's  property  will 
"  be  taken  from  a  virtuous  wife  and  an  amiable  family  of 
"  children,  to  support  a  dissolute  and  profligate  mistress,  yet 
"the  rules  of  law  must  be  uniform.  In  this  country,  where 
"  divorces  are  not  allowed  for  any  cause  whatever,  we  some- 
"  times  see  men  of  excellent  characters,  unfortunate  in  their 
"marriages,  and  virtuous  women  abandoned,  or  driven  away 
"houseless  by  their  husbands,  who  would  be  doomed  to 
"  celibacy  and  solitude  if  they  did  not  form  connections 
"  which  the  law  does  not  allow,  and  who  make  excellent  hus- 
"  bands  and  virtuous  wives  still.  Yet  they  are  considered  as 
"  living  in  adultery  because  a  rigorous  and  unyielding  law, 
"  from  motives  of  policy  alone,  has  ordained  it  so.  *  *  * 
"It  is  not  because  a  woman  has  forsaken  the  paths  of  virtue 
"that  she  is  to  be  abandoned  and  forsaken.  The  first 
"  woman  that  was  made,  who  came  pure  and  spotless  from 
"  her  Maker's  hand,  was  the  victim  of  seduction,  but  she  was 
"  still  provided  for.  And  the  law  looks  with  that  indulgence 
"  on  the  frailties  of  human  nature  as  not  to  consider  every 
"  error  an  unpardonable  crime." 

Cusack  vs.  White,  2  Mills  (S.  C.)  368. 

While  in  another  case,  in  the  same  court,  the  institution  of 
marriage  is  thus  likened  to  a  horse  trade : 

"All  marriages,  almost,  are  entered  into  on  one  of  two 
"considerations,  that  is,  love  or  interest:  and  the  court  is 
"  induced  to  believe  the  latter  is  the  foundation  of  most  of 
"  them.  If  the  complainant  in  this  case  chose  to  marry  a 
"very  aged  man,  and  if  she  has  made  a  sacrifice  of  herself 
"  on  the  altar  of  interest,  it  is  not  for  this  court  to  say  she 
"  had  not  a  right  to  do  so.  If,  on  the  other  hand,  the  de- 


10  MARRIAGE  AND  DIVORCE. 

"  fendant  chose  to  dispose  of  a  part  of  his  property  for  which 
"  he  had  little  or  no  use,  *  *  *  to  a  person  to  take  care 
"  of  him  in  his  days  of  imbecility,  and  one  who  would  soothe 
"  his  cares  at  the  close  of  life,  he  also  has  a  right  to  do  so." 

For  our  part,  we  prefer  the  legal  institution  of  divorce  to 
the  legal  institution  of  concubinage. 

Moralists  who  are  wont  to  contrast  to  our  disparagement 
the  by-gone  days,  when  divorce  was  comparatively  unknown, 
with  the  present  time,  when  it  is  so  common,  seem  to  be 
oblivious  of,  or  to  ignore  other  facts — that  in  the  days  of 
primeval  simplicity  the  modes  and  habits  of  life  were  entirely 
different  from  those  in  vogue  now.  Persons  then  were  reared 
and  educated  in  the  localities  of  their  nativity,  and,  when  they 
attained  to  their  majority,  if  they  settled  elsewhere  than  in 
the  home  of  their  youth,  they  made  this  settlement  once  for 
an  entire  lifetime,  and,  before  doing  so,  selected  their  marital 
companions  from  the  playmates  of  their  childhood.  They 
thus  usually  knew  from  their  earliest  years  those  who  were 
to  be  the  partners  of  their  lives,  and  the  margin  for  decep- 
tion and  mistake  was,  in  consequence,  comparatively  small, 
while  the  stability  of  their  homes  and  domicils  also  tended  to 
pervade  and  to  become  the  characteristic  and  habit  of  their 
entire  domestic  affairs. 

Moreover,  in  those  days  of  steady  habits,  newly  married 
persons  at  once  founded  isolated  and  independent  homes  of 
their  own.  Hotels  and  boarding-houses  were  unknown  and 
unthought  of  as  homes.  "  Love  in  a  cottage  "  was  not  then  a 
lost  art,  and  every  married  man  was  understood  to  be  a  free- 
holder, and  every  married  woman  to  be  a  literal  housekeeper. 

In  those  sober  days  traveling  was  a  casual  or  fortuitous 
circumstance  in  one's  life,  and  the  avocations  which  rob  men 
of  their  sleep  were  rare.  Married  people  spent  their  lives  to- 
gether, affection  grew  into  constancy,  and  deep  and  abiding 
love  effectually  barred  the  ingress  of  the  destroyers  of  domes- 
tic concord. 

In  such  condition  of  affairs  it  is  manifest  that   divorce 


PKELIMINABY.  11 

would  be  infrequent  and  abhorred,  and  it  is  only  necessary 
to  assign  habit,  and  not  virtue,  as  the  sufficient  cause  of  the 
limited  empire  then  assigned  to  this  now  all -conquering  hero. 

Again :  In  those  days  the  individuality  of  the  wife  was 
merged  and  lost  in  the  husband;  her  property  and  debts 
became  his ;  she  could  not  transact  business  herself;  she  was, 
alike  by  the  marital  and  conventional  law,  consigned  to  the 
privacy  and  seclusion  of  her  home.  But  the  married  woman's 
laws  have  changed  all  this,  and  the  married  woman  occupies 
a  superior  place  now  in  regard  to  the  laws  concerning  prop- 
erty. She  may  own  her  own  separate  property,  with  no  let 
or  hindrance  on  the  part  of  her  husband;  she  may  transact 
business  entirely  independent  of  him  in  many  of  the  States, 
and  she  is  accorded  the  right,  generally,  to  practice  in  all  the 
professions,  and  work  at  any  of  the  trades.  Moreover,  a  cus- 
tom is  quite  prevalent,  and  which  tends  greatly  to  the  aggran- 
dizement of  a  wife's  position,  of  reckless  men  transacting 
business  in  their  wives'  names  and  putting  their  property  in 
their  names  in  order  to  cheat  and  defraud  their  creditors. 

That  these  radical  social  and  economic  changes  should 
produce  a  radical  change  also  in  our  habits  of  divorce  is  a 
necessary  and  obvious  sequence;  to  expect  the  habit  and 
paucity  of  divorces  to  remain  the  same  under  one  system  as 
under  the  other  is  to  take  no  note  of  the  co-relation  between 
cause  and  effect,  and  is  to  ignore  the  aphorism  that  "circum- 
stances alter  cases." 

Again :  While  the  tendencies  of  real  home  life  were  to  pre- 
serve and  strengthen  affection  and  affinity  of  married  couples, 
the  tendency  of  hotel  and  boarding-house  living  has  a  nat- 
ural tendency  to  disintegration  and  discontent.  Where  young 
people  of  either  sex  are  brought  in  familiar  contact  with  a 
miscellaneous  throng  of  persons  of  the  opposite  sex,  in  the 
various  conditions  and  situations  of  domestic  life,  their  pre- 
dilections, affections  and  affinities  are  apt  to  be  unsettled; 
and,  where  this  entering  wedge  of  discord  is  once  allowed  to 
enter  the  domestic,  circle,  a  complete  sundering  of  the  family 


12  MARKIAGE  AND  DIVOECE. 

affections  is  almost  an  inevitable  consequence.  Closely  allied 
to  this  most  potent  cause  for  evil  is  the  radical  change 
in  the  business  habits  of  our  people.  It  was  once  rare 
for  a  man  to  be  absent  fro^  his  family  circle  beyond  a 
few  hours  at  a  time ;  now,  Jiowever,  there  are  scores  of  avo- 
cations which  compel  men  to  be  absent  from  their  families 
for  greater  or  lesser  periods  of  time,  and  frequently  for  long 
periods;  to  expect  such  a  condition  of  affairs  to  be  com- 
patible with  the  infrequency  of  causes  for  divorce  of  ancient 
days  is  absolutely  unreasonable. 

Thus,  while  moralists  berate  what  they  term  the  increasing 

evil  of  the  institution  of  divorce,  they  take  no  account  of  the 
radically  changed  condition  of  our  social  life,  making  nec- 
essary and  inevitable  an  entirely  different  condition  of  our 
divorce  system. 

One  of  the  conditions  of  marriage  and  the  marital  condi- 
tion is  that  of  an  abridgment  of  unrestrained  personal  liberty, 
and  the  imposition  of  restraint  upon  its  members ;  where  this 
union  is  sanctified  by  love,  this  limitation  of  personal  liberty 
is  not  irksome,  but  in  a  union  where  the  essential  ele- 
ment of  cohesion — love — is  eliminated,  this  restraint  becomes 
irksome,  and  each  day  but  adds  to  the  burden  and  misery  of 
the  marriage  state. 

As  the  conditions  of  society  in  the  olden  time  were  favor- 
able to  the  growth  and  development  of  love,  the  conditions 
of  social  life  now  and  in  the  recent  days  are  inimical  to  its 
existence,  and  the  necessary  consequence  of  a  diminution  of 
that  essential  ingredient  to  a  blissful  married  state  engen- 
ders and  inspires  the  antipodal  elements  of  indifference,  dis- 
gust and  hatred,  and  thus  renders  impossible  the  continuance 
of  the  married  relation  except  upon  terms  which  are  obnox. 
ious  and  demoralizing  to  both  parties. 

It  is  claimed  by  opponents  of  the  present  laxity  of  the 
divorce  system  that  the  best  remedy  for  the  unhappy  condi- 
tion of  mis-matched  and  inharmonious  couples  is  to  keep 
them  tightly  bound  in  the  galling  chains  of  wedlock  until 


fKELIMINAKY.  13 

love,  affection  and  mutual  loyalty  are  restored  to  the  jarring 
union. 

That  this  blessed  consummation  is  quite  possible  of  attain- 
ment with  mutual  advantage  to  both  parties  may  be  conceded, 
but  in  such  a  large  preponderance  of  cases  as  to  establish  it 
as  the  general  rule  no  such  grateful  results  are  to  be  ex- 
pected, except  as  the  result  of  the  breaking  down  and  crush- 
ing out  of  the  individuality,  independence  and  womanhood 
of  the  weaker  party,  all  persons  who  have  sufficiently  studied 
the  problem  of  social  life  well  know. 

We  do  not  desire  to  controvert  the  question  but  that  the 
outward  show  and  technical  integrity  of  marital  felicity  is  not 
too  dearly  bought  at  the  price  of  the  annulment  of  the  will, 
individuality  and  autonomy  of  the  female  involved  in  the 
problem,  but  it  cannot,  certainly,  be  otherwise  than  out  of 
place  and  inharmonious  with  the  popular  and  growing  senti- 
ment of  women's  rights,  which  find  an  honored  place  in  our 
statute  books,  in  our  social  customs,  in  our  literature,  and  in 
our  religion. 

That  a  certain  amount  of  force  is  necessary  to  be  used  in 
preserving  the  conjugal  relation  is  undoubted,  and  the  dim- 
cult  question  is  presented  of  how  much  force  is  proper  to  be 
used. 

In  the  olden  days,  in  England,  the  institution  of  divorce 
was  unknown,  or,  rather,  it  was  only  ideally  possible  through 
the  media  of  an  act  of  parliament,  but  it  must  not  be  lost 
sight  of  that  in  that  same  nation  which  thus  fostered  marital 
slavery  was  entwined  in  its  pillars  of  state  and  engrafted  upon 
its  common  law  the  permission  of  any  lord  of  creation  to  cor- 
rect and  punish  his  wife  "  with  a  stick  not  larger  than  his 
thumb," 

In  those  days,  in  England,  deeds  of  separation  constituted 

a  contract,  well  known  to  English  law  and  lawyers,  and  it 

was  not  a  matter  unknown  or  uncommon  for  two  separate  and 

^distinct  families  to  grace  the  genealogic  chart  of  the  same 

loyal  Briton,  one  deriving  its  maternity  from  a  now  neglected 


14  MAKBIAGE  AND  DIVORCE. 

wife,  and  the  other  being  the  clandestine  product  of  an  irreg- 
ular alliance  with  a  housekeeper — so  called — or  some  other 
similar  substitute  for  a  cleanly  and  loyal  home. 

The  Eoman  church  still  pursues  the  ancient  policy  of 
Great  Britain,  of  consigning  the  participants  at  a  marriage 
ceremony  to  a  sealed-up  matrimonial  dungeon — however  re- 
plete with  horrors  it  might  prove. 

The  product  of  this  policy  is  often  enough  seen  in  sad, 
abused,  maltreated  wives  following  brutal  husbands  to  the 
ends  of  the  earth,  bound  to  them  by  religious  vows  and  su- 
perstition's adamantine  chains.  The  instance  will  not  be 
forgotten  of  one  of  these  slaves  of  the  matrimonial  tyranny 
arising  in  the  police  court,  where  her  husband  was  fined  for 
cruelly  beating  her,  and  exclaiming :  "  Well !  thank  God,  ] 
can  pawn  my  feather  bed,  and  pay  John's  fine." 

Society  has  no  right  to  complain  of  the  granting  of  di- 
vorces provided  the  sound  discretion  of  our  courts  of  general 
jurisdiction  pronounce  such  divorces  necessary  and  proper. 

If  society  wants  to  inaugurate  a  reform  it  must  begin 
lower  down  than  the  divorce  courts ;  it  is  inexpressively  sad 
to  witness  the  great  and  growing  prevalence  of  divorce,  bui 
it  would  be  very  much  more  melancholy  if  the  causes  there- 
for were  suffered  to  continue  and  the  remedy  to  be  withheld ; 
it  is  sad  to  behold  the  enlargement  of  our  penitentiaries,  bui 
what  would  society  be  without  them  ? 

And  in  all  of  our  comments  we  have  not  spoken  yet  oi 
fraudulently  obtained  or  unwarranted  divorces ;  only  such  as 
would  commend  them  to  sound  and  conservative  judgment  ae 
being  in  all  respects  necessary  and  just,  said  judgment  to  not 
be  biased  in  any  way  or  degree  by  reasons  of  prejudice,  con- 
ventionalism or  superstitious  reverence  for  authority  human, 
or,  supposed,  divine. 

We  discard  all  fraudulent  divorces,  and,  could  we  have 
our  way,  we  would  interdict  all  fraud  in  divorce  law  or  its 
application  as  rigorously  as  in  any  department  of  jurispru- 
dence. To  recapitulate : 


PKELIMINAKY.  15 

(1.)  The  great  increase  of  applications  for  divorce  has  an 
adequate  cause  in  the  changed  social  and  economic  condi- 
tions of  life. 

(2.)  However  great  may  be  the  evil  of  so  many  divorces, 
a  much  greater  social  evil  would  supply  its  place  if  the  causes 
for  divorce  were  suffered  to  continue,  and  the  remedy  of  di- 
vorce were  withheld. 

(3.)  A  limited  area  of  divorce  is  not  compatible  with 
the  enfranchisement  and  enlarged  freedom  of  the  female 
sex. 

(4.)  Wise  and  judicious  statesmanship,  and  not  abstract 
morality,  is  the  thing  needed  to  prescribe  our  divorce  laws, 
and  adapt  them  and  their  administration  to,  the  current  exi- 
gencies of  social  life. 

(5.)  While  marriage  may  be,  sentimentally,  a  religious 
sacrament,  it  is  practically  a  legal  contract,  and  its  annul- 
ment must  be  a  subject  of  logical  deduction  and  judicial  con- 
sideration. 

(6.)  Society  can  be  trusted  to  take  proper  care  of  its  di- 
vorce laws;  the  divorce  laws  of  the  various  States  are 
moulded  by  inevitable  necessity,  and  whenever  they  grow  too 
lax,  as  in  Indiana  a  few  years  since,  public  opinion  compels 
the  legislature  and  the  courts  to  apply  the  corrective. 

(7.)  The  field  for  the  labors  of  the  reformer  is  the  social 
world ;  let  the  causes  for  divorce  be  abridged,  and  divorce  as 
an  effect  will  be  abridged  also. 


II. 

MAKEIAGE. 


"  There  is  no  graver  event  in  a  man's  life  than  marriage.  It  may 
prove  an  inestimable  blessing,  the  subtle  influences  of  which  will  per- 
meate every  hour  of  the  day,  strengthen  every  fibre  of  his  moral 
being,  and  by  its  satisfying  repose  to  the  affections,  give  to  his  intel- 
lect a  calmer  and  more  continuous  sweep.  It  may  also  prove  a  deso- 
lating evil,  numbing  the  sympathies,  irritating  and  scattering  the 
intellectual  energies,  distorting  the  life."—  G.  H.  Lewea. 

11  Marriage  is  nothing  but  a  civil  contract.  Tis  true,  'tis  an  ordi- 
nance of  God.  So  is  every  other  contract.  God  commands  me  to  keep 
it  when  I  have  made  it." 

"  If  all  actions  of  man's  life,  his  marriage  does  least  concern  other 
people.  Yet  of  all  actions  of  our  life,  'tis  most  meddled  with  by  other 
people."— Selden. 

"  Is  not  marriage  an  open  question,  when  it  is  alleged  from  the 
beginning  of  the  world  that  such  as  are  in  the  institution  wish  to  get 
out,  and  such  as  are  out  wish  to  get  in?" — Montaigne. 

Oh  !  Curse  of  marriage, 

That  we  can  call  these  delicate  creatures,  ours, 
And  not  their  appetites.  — Shake. 

Let  me  not  to  the  marriage  of  true  minds 

Admit  impediments.  — Shaks. 

Marriage  is  treated  by  all  civilized  nations  as  a  peculiar 
and  favored  contract.  It  is,  in  its  origin,  a  contract  of  natural 
law.  But  it  appears  to  me  to  be  something  more  than  a 
mere  contract.  It  is  rather  to  be  deemed  an  institution  of 
society,  founded  upon  the  consent  and  contract  of  the  parties, 
and,  in  this  view,  it  has  some  peculiarities  in  its  nature, 
character,  operation,  and  extent  of  obligations,  different  from 


MARRIAGE.  17 

what  belong  to  ordinary  contracts.  It  may  exist  between  two 
individuals  of  different  sexes,  although  no  third  person  existed 
in  the  world.  *  *  *  In  civil  society,  ii»  means  a  civil 
contract,  regulated  and  prescribed  by  law,  and  endowed  with 
civil  consequences.  l  In  many  civilized  countries,  acting 
under  a  sense  of  the  force  of  sacred  obligations,  it  has  had 
the  sanctions  of  religion  superadded.  It  then  becomes  a 
religious,  as  well  as  a  natural  and  civil  contract,  for  it  is  a 
great  mistake  to  suppose  that  because  it  is  the  one,  therefore 
it  may  not  likewise  be  the  other.  The  common  law  of 
England,  and  which  also  obtains  in  America,  considers 
marriage  in  no  other  light  than  a  civil  contract.  In  Catholic 
countries,  and  also  in  some  of  the  Protestant  countries  of 
Europe,  it  is  treated  as  a  sacrament.2 

"Marriage  being  entirely  a  personal,  consensual  contract, 
it  may  be  thought  that  the  lex  loci  must  be  resorted  to  in  ex- 
pounding every  question  that  arises  relative  to  it.  But  it 
will  be  observed  that  marriage  is  a  contract  sui  generis,  and 
differing  in  some  respects  from  all  other  contracts,  so  that 
the  rules  of  law  which  are  applicable  in  expounding  and  en- 
forcing other  contracts  may  not  apply  to  this.  The  contract 
of  marriage  is  the  most  important  of  all  human  transactions. 
It  is  the  very  basis  of  the  whole  fabric  of  civilized  society. 
The  status  of  marriage  is  juris  gentium,  and  the  foundation 
of  it,  like  all  other  contracts,  rests  on  the  consent  of  the 
parties.  But  it  differs  from  other  contracts  in  this,  that 
the  rights,  obligations  or  duties  arising  from  it  are  not  left 
entirely  to  be  regulated  by  the  agreements  of  parties,  but 
are,  to  a  certain  extent,  matters  of  municipal  regulation  over 
which  the  parties  have  no  control  by  any  declaration  of 
their  will.  It  confers  the  status  of  legitimacy  on  children 
born  in  wedlock,  with  all  the  consequential  rights,  duties  and 
privileges  thence  arising;  it  gives  rise  to  the  relations  of 
consanguinity  and  affinity ;  in  short,  it  pervades  the  whole 
system  of  civil  society.  Unlike  other  contracts,  it  cannot, 

1  Story,  CovLf.  of  Laws,  108.       2  Hag.,  Con.  63. 


18  MAKKIAGE  AND  DIVOKCE. 

in  general  amongst  civilized  nations,  be  dissolved  by  mutual 
consent,  and  it  subsists  in  full  force,  even  although  one  of 
the  parties  should  be  forever  rendered  incapable,  as  in  case 
of  incurable  insanity  or  the  like,  from  performing  his  part 
of  the  mutual  contract.  No  wonder  that  the  rights,  duties 
and  obligations  arising  from  so  important  a  contract  should 
not  be  left  to  the  discretion  or  caprices  of  the  contracting 
parties,  but  should  be  regulated  in  many  important  particu- 
lars by  the  laws  of  every  civilized  country.  And  such  laws 
must  be  considered  as  forming  a  most  essential  part  of  the 
public  laws  of  the  country.  As  to  the  constitution  of  the 
marriage,  as  it  is  merely  a  personal,  consensual  contract, 
it  must  be  valid  everywhere  if  celebrated  according  to  the 
lex  lodt  but  with  regard  to  the  rights  and  duties  thence 
arising  the  law  of  the  domicil  must  be  looked  to.  It  must 
be  admitted  that  in  every  country  the  laws  relative  to  divorce 
are  considered  as  of  the  utmost  importance,  as  public  laws 
affecting  the  dearest  interest  of  society. 

"It  is  said  that  in  every  contract  the  parties  bind  them- 
selves, not  only  to  what  is  expressly  stipulated,  but  also  to 
what  is  implied  in  the  nature  of  the  contract,  and  that  these 
stipulations,  whether  express  or  implied,  are  not  affected  by 
any  subsequent  change  of  domicil.  This  may  be  true  in  the 
general  case,  but,  as  has  been  already  noticed,  marriage  is  a 
contract  sui  generis,  and  the  rights,  duties  and  obligations 
which  arise  out  of  it  are  matters  of  so  much  importance  to 
the  well-being  of  the  State  that  they  are  regulated,  not  by  the 
private  contract,  but  by  the  public  laws  of  the  State,  which 
are  imperative  on  all  who  are  domiciled  within  its  territory. 
If  a  man  in  this  country  were  to  confine  his  wife  in  an  iron 
cage,  or  to  beat  her  with  a  rod  of  the  thickness  of  the  judge's 
finger,  would  it  be  a  justification  to  any  court  to  allege  that 
these  were  powers  which  the  law  of  England  conferred  on  a 
husband,  and  that  he  was  entitled  to  the  exercise  of  them 
because  his  marriage  had  been  celebrated  in  that  country? 

•'In  short,  although  a  marriage  which  is  contracted  accord- 


UNIVERSITY 
V 

%^>L  ••:- 
MARRIAGE.  19 

ing  to  the  lex  loci  will  be  valid  all  the  world  over,  and  al- 
though many  of  the  obligations  incident  to  it  are  left  to  be 
regulated  solely  by  the  agreement  of  the  parties,  yet  many 
of  the  rights,  duties  and  obligations  arising  from  it  are  so 
important  to  the  best  interests  of  morality  and  good  govern- 
ment that  the  parties  have  no  control  over  them,  but  they 
are  regulated  and  enforced  by  the  public  law,  which  is  im- 
perative on  all  who  are  domiciled  within  its  jurisdiction  and 
which  cannot  be  controlled  or  affected  by  the  circumstance 
that  the  marriage  was  celebrated  in  a  country  where  the  law 
is  different.  In  expounding  or  enforcing  a  contract  entered 
into  in  a  foreign  country  and  executed  according  to  the  laws 
of  that  country,  regard  will  be  paid  to  the  lex  loci,  as  the 
contract  is  evidence  that  the  parties  had  in  view  the  law  of 
the  country  and  meant  to  be  bound  by  it.  But  a  party  who 
is  domiciled  here  cannot  be  permitted  to  import  into  this 
country  a  law  peculiar  to  his  own  case  and  which  is  in  oppo- 
sition to  those  great  and  important  public  laws  which  our 
legislature  has  held  to  be  essentially  connected  with  the  best 
interests  of  society." — Lord  Robertson.1  Lord  Stowell  said : 
"The  validity  of  the  marriage  rites  must  be  tried  by  reference 
to  the  law  of  the  country  where  *  *  *  they  had  their 
origin."  Between  persons  sui  juris,  marriage  is  to  be 
decided  by  the  law  of  the  place  where  it  is  celebrated.  If 
valid  there,  it  is  valid  everywhere.  It  has  a  legal  ubiquity  of 
obligation.  If  invalid  there,  it  is  equally  invalid  everywhere. 
In  a  case  in  Maine  the  court  says :  "  When  the  contracting 
parties  have  entered  into  the  married  state,  they  have  not  so 
much  entered  into  a  contract  as  into  a  new  relation,  the  rights, 
duties,  and  obligations  of  which  rest,  not  upon  their  agree- 
ment, but  upon  the  general  law  of  the  State,  statutory  or 
common,  which  defines  and  prescribes  those  rights,  duties, 
and  obligations.  They  are  of  law  and  not  of  contract.  It 
was  of  contract  that  the  relation  should  be  established,  but, 
being  established,  the  power  of  the  parties  as  to  its  extent  or 

1  Story,  Conl.  of  Laws,  113. 


20  MARRIAGE  AND  DIVORCE. 

duration  is  at  an  end.  Their  rights  under  it  are  determined 
by  the  will  of  the  sovereign,  as  evidenced  by  law.  They  can 
neither  be  modified  nor  changed  by  any  agreement  of  the 
parties.  It  is  a  relation  for  life,  and  the  parties  cannot 
terminate  it  at  any  shorter  period,  by  virtue  of  any  contract 
they  may  make.  The  reciprocal  rights  arising  from  this 
relation,  so  long  as  it  continues,  are  such  as  the  law 
determines  from  time  to  time,  and  no  other."  Again,  court 
says:  "It  is  not  a  contract  within  the  meaning  of  the  con- 
stitution which  prohibits  the  impairing  of  the  obligation  of 
contracts.  It  is  rather  a  social  relation,  like  that  of  parent 
and  child,  the  obligations  of  which  arise,  not  from  the  consent 
of  concurring  minds,  but  are  the  creation  of  the  law  itself ;  a 
relation  the  most  important,  as  affecting  the  happiness  of 
individuals — the  first  step  from  barbarism  to  civilization,  the 
purest  tie  of  social  life,  and  the  true  basis  of  human 
progress." 

The  Supreme  Court  of  Ehode  Island  says  similarly  : 
"  Marriage,  in  the  sense  in  which  it  is  dealt  with  by  a  decree 
of  divorce,  is  not  a  contract,  but  one  of  the  domestic 
relations.  In  strictness,  though  formed  by  contract,  it  signifies 
the  relation  of  husband  and  wife,  deriving  both  its  rights  and 
duties  from  a  source  higher  than  any  contract  of  which  the 
parties  are  capable,  and,  as  to  these,  uncontrollable  by  any 
contract  which  they  can  make.  When  formed,  this  relation 
is  no  more  a  contract  than  fatherhood  or  sonship  is  a  con- 
tract."* It  has  also  been  defined  as  a  public  institution,  and 
more  than  a  contract.'  And  it  has  frequently  been  adjudged 
to  not  be  such  a  contract  as  is  referred  to  in  the  Constitution 
of  the  United  States,  which  provides  that  no  State  shall  pass 
any  law  impairing  the  obligations  of  a  contract.  It  has 
been  said  that  "there  are  three  parties  to  every  divorce 
proceeding :  the  husband,  the  wife,  and  the  State  :  the  first  two 
parties  representing  their  respective  interests  as  individuals, the 
State  concerned  to  guard  the  morals  of  its  citizens,  by  taking 

1  51  Me.,  483.  24B.  I.,  187.          3  9  Ind.,  37. 


MARRIAGE.  21 

care  that  neither  by  collusion  or  otherwise  shall  divorce  be 
allowed  under  such  circumstances  as  to  reduce  marriage  to  a 
mere  temporary  arrangement  of  conscience  or  passion."1 
And  although,  in  this  case,  the  parties  both  appeared  in  the 
Indiana  court  and  consented  to  the  jurisdiction  and  the 
decree,  the  court  in  Michigan  said :  *  *  *  "The  divorce 
must  be  void ;  and  the  State  has  very  properly  treated  it  as 
void,  by  instituting  this  prosecution"  (for  bigamy),  and  the 
defendant  was  convicted  and  imprisoned.  Again,  it  has  been 
said  by  a  distinguished  foreign  jurist :  "Though  the  origin  of 
marriage  is  contract,  it  is  in  a  different  situation  from  all 
others.  It  is  a  contract  coeval  with,  and  essential  to,  the 
existence  of  society,  while  the  relations  of  husband  and  wife, 
parent  and  child,  to  which  it  gives  rise,  are  the  foundation  of 
many  rights,  acknowledged  all  the  world  over,  and  which, 
though  differently  modified  in  different  countries,  have  every- 
where a  legal  character,  determined  by  their  particular  laws 
and  usages,  altogether  independent  of  the  terms  of  the 
contract  or  the  will  of  the  parties  at  the  time  of  entering 
into  it."2 

And  it  will  be  found  that,  in  our  country,  although  the 
marriage  is  founded  in  contract,  yet  after  it  is  celebrated  it 
then  becomes  a  status,  like  that  of  parent  and  child,  and  that, 
while  having  many  attributes  of  a  contract,  it  is  more  than 
a  contract. 

A  legal  marriage  among  the  Romans  was  made  in  three 
different  ways,  called  usus,  confarreatio  and  coemptio.  Usus, 
usage  or  prescription,  was  when  a  woman,  with  the  consent 
of  her  parents  or  guardian,  lived  with  a  man  for  a  whole 
year  without  being  absent  three  nights,  and  thus  became 
his  lawful  wife  or  property  by  prescription.  If  absent  for 
three  nights  she  was  said  to  have  interrupted  the  pre- 
scription and  thus  prevented  the  marriage. 

Confarreatio  was  when  a  man  and  woman  were  joined  in 
marriage  by  the  pontifex  maximus  or  flamen  dialis  in 

1  25  Mich.,  257.       8  Eng.  Bcc.  495. 


22  MAKRIAGE  AND  DIVOKCE. 

presence  of  at  least  two  witnesses,  by  a  set  form  of  words, 
and  by  tasting  a  cake  made  of  salt,  water,  and  flour,  called 
far  or  panis  farrens,  or  farreum  libium,  which  was  offered 
with  a  sheep  in  sacrifice  to  the  gods. 

This  was  the  most  solemn  form  of  marriage,  and  could 
only  be  dissolved  by  another  kind  of  sacrifice,  called  diffar- 
reatio.  By  it  a  woman  was  said  to  come  into  the  possession 
or  power  of  her  husband  by  the  sacred  laws.  She  thus 
became  partner  of  all  his  substance  and  sacred  rights,  those 
of  the  Penates  as  well  as  of  the  Lares.  If  he  died  intestate 
and  without  children  she  inherited  his  whole  fortune  as  a 
daughter.  If  he  left  children,  she  had  an  equal  share  with 
them.  If  she  committed  any  fault,  the  husband  judged  of  it 
in  company  with  her  relatives,  and  punished  her  at  pleasure. 
The  punishment  of  women  publicly  condemned  was  some- 
times, also,  left  to  their  relatives.  The  children  of  this  kind 
of  marriage  were  called  patrimi  or  matrimi,  often  employed 
for  particular  purposes  in  sacred  solemnities.  Certain 
priests  were  chosen  only  from  among  them,  as  the  flamen 
of  Jupiter,  and  also  the  vestal  virgins.  According  to  Festus, 
those  were  so  called  whose  parents  were  both  alive:  thus, 
if  only  the  father  was  alive,  patrimi ;  if  only  the  mother, 
matrimi.  Hence,  Minerva  is  called  patrimi  virgo,  because 
she  had  no  mother,  and  a  man  who  had  children,  while 
his  own  father  was  alive,  pater  patrimus.  The  ceremony  of 
marriage,  in  later  times,  fell  much  into  disuse.  Hence, 
Cicero  mentions  only  two  kinds  of  marriage,  usus  and 
coemptio.  The  latter  was  a  kind  of  natural  purchase,  when 
a  man  and  woman  were  married  by  delivering  to  one 
another  a  small  piece  of  money  and  repeating  certain 
words.  The  man  asked  the  woman  if  she  was  willing  to  be 
the  mistress  of  his  family.  She  answered,  she  was.  In  the 
same  manner  the  woman  asked  the  man,  and  he  made  a 
similar  answer. 

The  effects  of  this  rite  were  the  same  as  of  the  former. 
The  woman  was  to  the  husband  in  place  of  a  daughter,  and 


MARRIAGE.  23 

he  to  her  as  a  father.  She  assumed  his  name,  together  with 
her  own,  as  Antonia  Drusi,  Domitia  Bibuli,  etc.  She  resigned 
to  him  all  her  goods,  and  acknowledged  him  as  her  lord  and 
master.  The  goods  which  a  woman  brought  to  her  husband, 
besides  her  portion,  were  called  parapherna  orum  or  bona 
paraphernalia.  In  the  first  days  of  the  republic  dowries  were 
very  small;  that  given  by  the  Senate  to  the  daughter  of 
Scipio  was  only  11,000  asses  of  brass,  or  $177.00,  and  one 
Me'guillia  was  surnamed  Dolata,or  the  great  fortune,  because 
she  had  500,000  asses,  i.e.,  $807.00.  But  afterwards,  on  the 
increase  of  wealth,  the  marriage  portions  of  women  became 
greater,  $40,360  being  the  usual  portion  of  a  lady  of 
Senatorian  rank;  some  had  $807,290.  Sometimes  the 
wife  received  to  herself  a  part  of  the  dowry,  hence  called  dos 
recepticia,  and  a  slave  who  was  not  subject  to  the  power  of 
her  husband.  Some  think  that  coempti  was  used  as  an 
accessory  rite  to  confarreatio,  and  retained  when  the  primary 
rite  was  dropped.  The  right  of  purchase  in  marriage  was 
not  peculiar  to  the  Komans,  but  prevailed  also  among  other 
nations,  as  the  Hebrews — so  in  the  days  of  Homer,  to  which 
Virgil  alludes.  Some  say  that  a  yoke  used,  anciently,  to  be 
put  on  a  man  and  woman  about  to  be  married,  whence 
they  were  called  conjuges.  But  others  think  this  expression 
merely  metaphorical,  as  Horace  and  Plautus.  A  matrimonial 
union  between  slaves  was  called  contubernium,  the  slaves 
themselves  contubernales,  or,  when  a  free  man  lived  with  a 
woman  not  married  (concubinatas),  in  which  case  the  woman 
was  called  Concubinia,  Pellaca,  or  Pellex :  thus  Pellex  Eeginae, 
Filae  or  Sorosis. 

Married  women  were  called  matronae  or  matres  familiai, 
opposed  to  meretrices,  prostitutae,  scoria,  etc. 

There  could  be  no  just  or  legal  marriage,  for  better  or  for 
worse,  unless  between  Eoman  citizens,  unless  a  particular  per- 
mission for  that  purpose  was  obtained  first  from  the  people  or 
senate  and  afterward  from  the  emperors.  Anciently  a  Eoman 
citizen  was  not  allowed  to  marry  a  freedwoman,  since  An- 


24  MARRIAGE  AND  DIVORCE. 

tony  is  reproached  by  Cicero  for  having  married  Fulvia,  the 
daughter  of  a  freedman,  as  he  afterward  was  detested  at 
Eome  for  marrying  Cleopatra,  a  foreigner,  before  he  divorced 
Octavia,  but  this  was  not  esteemed  a  legal  marriage.  By  the 
lex  papia  poppaea  a  greater  freedom  was  allowed.  Only  sena- 
tors and  their  sons  and  grandsons  were  forbidden  to  marry  a 
freedwoman,  an  actress,  or  the  daughter  of  an  actor.  But  it 
was  not  until  Caracalla  had  granted  the  right  of  citizenship 
to  the  inhabitants  of  the  whole  empire  that  Eomans  were 
permitted  freely  to  intermarry  with  foreigners. 

The  Komans  sometimes  prohibited  intermarriage  between 
neighboring  districts  of  the  same  country,  and,  what  is  still 
more  surprising,  the  states  of  Italy  were  not  allowed  to  speak 
the  Latin  language  in  public,  nor  their  crier  to  use  it  in  pub- 
lic without  permission.  The  children  of  a  Eoman  citizen, 
whether  man  or  woman,  and  a  foreigner,  were  accounted  spu- 
rious, and  their  condition  little  better  than  slaves.  They  were 
called  hybridce,  the  general  name  of  animals  of  a  mixed  breed 
or  produced  by  animals  of  a  different  species — mongrels,  as  a 
mule — hence  applied  to  those  who  spring  from  parents  of  dif- 
ferent nations,  and  to  words  compounded  from  different  lan- 
guages. 

The  children  of  a  lawful  marriage  were  called  legitimi,  all 
others  illegitimi.  Of  the  latter  there  were  four  kinds :  natur- 
ales,  from  a  concubine ;  spurii,  from  a  meretrice,  or  scorto,  and 
nicrito  patre.  There  were  certain  degrees  of  consanguinity 
within  which  marriage  was  prohibited,  as  between  a  brother 
and  sister,  an  uncle  and  niece,  etc.  Such  connection  was 
called  incestus,  or  with  a  vestal  virgin.  These  degrees  were 
more  or  less  extended  or  contracted  at  different  times.  Poly- 
gamy, or  a  plurality  of  wives,  was  forbidden  among  the  Eo- 
mans. The  age  of  puberty,  or  marriage,  was  from  fourteen 
for  men  and  twelve  for  girls.  A  custom  prevailed  of  espous- 
ing infants  to  avoid  the  penalty  of  the  law  against  bachelors, 
but  Augustus  ordained  that  no  nuptial  engagement  should  be 
valid  which  was  made  more  than  two  years  before  the  cele- 


MAERIAGE.  25 

bration  of  the  marriage ;  that  is,  below  ten.  This,  however, 
was  not  always  observed. 

No  young  man  or  woman  was  allowed  to  marry  without 
the  consent  of  their  parents  or  guardians.  There  was  a  meet- 
ing of  friends,  usually  at  the  house  of  the  woman's  father  or 
nearest  relation,  to  settle  the  articles  of  the  marriage  con. 
tract,  which  was  written  on  tables  and  sealed.  The  contract 
was  called  sponsalia,  espousals,  the  man  who  was  betrothed  or 
affianced  sponsus,  and  the  woman  sponsa.  The  contract  was 
made  in  form  of  a  stipulation,  an  spondes  spondeo.  Then,  like- 
wise, the  dowry  was  promised  to  be  paid  down  on  the  marriage 
day  or  afterward,  usually  at  three  separate  payments.  On 
this  occasion  there  was  usually  a  feast,  and  the  man  gave  the 
woman  a  ring  by  way  of  pledge,  which  she  put  on  her  left 
hand,  on  the  finger  next  the  heart,  because  it  was  believed  a 
nerve  reached  from  thence  to  the  heart.  Then,  also,  a  day 
was  fixed  for  the  marriage.  Certain  days  were  reckoned  un- 
fortunate, as  the  Kalend,  Nones  and  Ides,  and  the  days  which 
followed  them,  particularly  the  whole  month  of  May,  and 
those  days  which  were  called  Atri,  marked  in  the  calendar 
with  black,  also  certain  festivals,  as  that  of  the  Solii,  Paren- 
talia,  etc.  But  widows  might  marry  on  those  days.  The 
most  fortunate  time  was  the  middle  of  the  month  of  June.  If, 
after  the  espousals,  either  of  the  parties  wished  to  retract,  it 
was  called  repudium,  and  when  a  man  or  woman,  after  sign- 
ing the  contract,  sent  notice  that  they  wished  to  break  off  the 
match,  they  were  said  to  repudiate  or  renunciate.  But  re- 
pudii  also  signifies  to  divorce  either  a  wife  or  a  husband. 

On  the  wedding  day  the  bride  was  dressed  in  a  long  white 
robe,  bordered  with  a  purple  fringe,  or  embroidered  ribbons, 
bound  with  a  girdle  made  of  wool,  which  the  husband  untied. 
Her  face  was  covered  with  a  red  or  flame-colored  veil  to  de- 
note her  modesty.  Her  hair  was  divided  into  six  locks  with 
the  point  of  a  spear  and  crowned  with  flowers.  Her  shoes 
were  of  the  same  color  as  her  veil.  No  marriage  was  cele- 
brated without  consulting  the  auspices  and  offering  sacrifices 


2(>  MARBIAGE  AND  DIVOBCE. 

to  the  gods,  especially  to  Juno,  the  goddess  of  marriage.  An- 
ciently, a  hog  was  sacrificed.  The  gall  of  the  victim  was  al- 
ways taken  out  and  thrown  away,  to  signify  the  removal  of 
all  bitterness  from  marriage. 

The  marriage  ceremony  was  performed  at  the  house  of  the 
bride's  father  or  nearest  relation.  In  the  evening  the  bride 
was  conducted  to  her  husband's  house.  She  was  taken  ap- 
parently by  force  from  the  arms  of  her  mother  or  nearest  re- 
lation, in  memory  of  the  violence  used  to  the  Sabine  women. 
Three  boys,  whose  parents  were  alive,  attended  her,  two  of 
them  supporting  her  by  the  arm,  and  the  third  bearing  a 
flambeau  of  pine  or  thorn  before.  There  were  five  other 
torches  carried  before  her,  called  faces  nuptiales. 

Maid-servants  followed  with  a  distaff,  a  spindle  and  noal, 
intimating  that  she  was  to  labor  at  spinning,  as  the  Koman 
matrons  did  of  old,  and  as  some  of  the  most  illustrious  did  in 
later  times.  Augustus  is  said  to  have  seldom  worn  anything 
but  the  manufacture  of  his  wife,  sister,  daughter,  and  nieces, 
at  least  for  his  domestic  robes. 

A  boy  named  Camillus  carried  in  a  covered  vase  called 
cumerum  the  bride's  utensils,  and  playthings  for  children. 

A  great  number  of  relatives  and  friends  attended  the  nup- 
tial procession,  which  was  called  qfficium.  The  boys  re- 
peated jests  and  railleries  as  the  bride  passed  along. 

The  door  and  door-posts  of  the  bridegroom's  house  were 
adorned  with  leaves  and  flowers,  and  the  rooms  with  tapes- 
try. When  the  bride  came  thither,  being  asked  who  she  was, 
she  answered:  "Even  as  my  lord  is  the  father  of  my  fam- 
ily, so  also  am  I  the  lady  and  mother  of  the  family. "  A  new 
married  woman  was  called  Caia,  from  the  wife  of  Tarquinus 
Prisons,  who  is  said  to  have  been  an  excellent  spinster  and 
housewife.  Her  distaff  and  spindle  were  kept  in  the  temple 
of  Saugus  or  Hercules. 

The  bride  bound  the  door-posts  of  her  husband  with  woolen 
fillets,  and  anointed  them  with  the  fat  of  swine  or  wolves  to  avert 
fascination  and  enchantments,  whence  she  was  called  Uxor. 


MAEEIAGE.  27 

She  was  lifted  on  the  threshold,  or  gently  stepped  on  it. 
It  was  thought  ominous  to  touch  it  with  her  feet,  because  the 
threshold  was  sacred  to  Vesta,  the  goddess  of  virgins.  Upon 
her  entry  the  keys  of  the  house  were  delivered  to  her,  to  de- 
note her  being  entrusted  with  the  management  of  the  family. 
A  sheepskin  was  spread  before  her,  intimating  that  she  was 
to  work  at  the  spinning  of  wool.  Both  she  and  her  husband 
touched  fire  and  water,  because  all  things  were  supposed  to 
be  derived  from  these  two  elements;  with  the  water  they 
bathed  their  feet. 

The  husband  on  this  occasion  gave  a  feast  to  his  relatives 
and  friends ;  also  to  those  of  the  bride  and  her  attendants. 
Musicians  attended,  who  sang  the  nuptial  song(epithalaneum). 
They  often  repeated  the  hymn  to  Hymen,  from  Hymen,  the 
god  of  marriage  among  the  Greeks,  and  Walassus,  among  the 
Eomans,  or  from  one  Falassius,  who  lived  in  great  happiness 
with  his  wife,  as  if  to  wish  the  newly  married  couple  the  like 
felicity.  These  words  used  also  to  be  resounded  by  the  at- 
tendants of  the  bride  on  the  way  to  her  husband's  house. 

After  supper  the  bride  was  conducted  to  her  bed-cham- 
ber by  matrons  who  had  been  married  to  only  one  husband, 
called  pronubae,  and  laid  in  the  nuptial  couch,  which  was 
magnificently  adorned  and  placed  in  the  hall  Qpposite  to  the 
door,  and  covered  with  flowers — sometimes  in  the  garden.  If 
it  had  ever  been  used  for  that  purpose  before,  the  place  of  it 
was  changed.  There  were  images  of  certain  divinities  around, 
slubigus,  pertunda,  etc. 

Nuptial  songs  were  sung  by  young  women  before  the  door 
till  midnight,  hence  called  epithalamia.  The  husband  scat- 
tered nuts  among  the  boys,  intimating  that  he  dropped  boy- 
ish amusements,  and  thenceforth  was  to  act  as  a  man; 
hence  nuees  relinquere,  to  shun  trifles  and  mind  serious  busi- 
ness ;  or  from  boys  playing  with  nuts  in  the  time  of  the  Sat- 
urnalia, which  at  other  times  was  forbidden.  Young  women, 
when  they  married,  consecrated  their  playthings  or  dolls  or 
babies  to  Venus.  The  guests  were  dismissed  with  small 


28  MARRIAGE  AND  DIVOROE. 

presents.  Next  day,  another  entertainment  was  given  by  the 
husband,  called  repotia,  when  presents  were  sent  to  the  bride 
by  her  friends  and  relatives,  and  she  began  to  act  as  mis- 
tress of  the  family  by  performing  sacred  rites.  A  woman, 
after  marriage,  retained  her  former  name,  as  Julia,  Fulvia, 
Octavia,  Paulla,  Valeria,  etc.,  joined  to  that  of  her  husband, 
Catonis  Marcia,  Julia  Pompeii,  Terentia  Ciceronis,  Livia 
Augustine. 


The  first  inhabitants  of  Greece  lived  together  without 
marriage.  Cecrops,  king  of  Athens,  is  said  to  have  been 
the  first  author  of  this  honorable  institution  among  that 
people.  After  the  Grecian  commonwealths  were  settled 
marriage  was  very  much  encouraged  by  their  laws  (as  it  was 
among  the  Eomans,  though  without  much  effect)  and  celi- 
bacy discountenanced,  and,  in  some  cases,  punished.  The 
Athenians  had  an  express  law  that  commanders,  orators, 
and  persons  entrusted  with  public  affairs  should  be  married 
men.  Polygamy  was  not  commonly  tolerated  in  Greece. 
The  time  of  marriage  was  different  in  different  States.  The 
Spartans  were  not  permitted  to  marry  till  they  arrived  at 
their  full  strength,  and  the  Athenian  lawyers  are  said  to 
have  directed  that  men  should  not  marry  till  they  were  35 
years  of  age.  The  season  of  year  which  they  preferred  for 
that  purpose  was  the  winter,  and  especially  the  month  of 
January.  Incestuous  mixtures,  though  practiced  among 
the  barbarous  natives,  were  reckoned  scandalous  among  the 
Greeks,  though  among  them,  as  originally  among  the  He- 
brews, it  seems  to  have  been  lawful  to  marry  a  half-sister, 
as  appears  manifest  in  the  case  of  Miltiades  and  Abraham. 
Most  of  the  Grecian  States  required  their  citizens  to  match 
only  with  citizens.  The  usual  ceremony  in  promising  fidel- 
ity among  the  Greeks  was  kissing  each  other,  or  giving 
their  right  hand,  which  was  a  general  form  of  ratifying  all 
agreements.  Before  the  marriage  was  solemnized,  the  goda 


MAKKIAGE.  29 


were  to  be  consulted  and  their  aid  implored,  by  prayer  and 
sacrifices,  by  the  parents  or  nearest  relatives. 


In  Germany  they  have  a  kind  of  marriage  called  mor- 
ganatio,  wherein  a  man  of  quality,  contracting  with  a  woman 
of  inferior  rank,  gives  her  the  left  hand  instead  of  the  right, 
and  stipulates  in  the  contract  that  the  wife  shall  continue 
in  her  former  rank,  and  that  the  children  shall  be  of  the 
same,  so  that  they  become  bastards  as  to  matters  of  inher- 
itance, though  they  are  legitimate  in  effect.  They  cannot 
have  the  names  or  arms  of  the  family.  None  but  princes 
or  great  lords  of  Germany  are  allowed  this  kind  of  marriage, 
but  the  universities  of  Leipsic  and  Jena  have  declared 
against  the  validity  of  such  contracts. 


The  Hebrews  also  purchased  their  wives  by  paying  a 
competent  dowry  for  them,  and  Aristotle  makes  the  purchase 
of  their  wives  among  the  ancient  Grecians  an  argument  to 
prove  them  an  uncivilized  people. 


Widows  were  obliged  to  wear  mourning  for  their  hus- 
bands at  least  ten  months,  and  if  they  married  within  that 
time  they  were  held  infamous ;  but  men  were  under  no  such 
restriction.  M.  Antoninus,  the  philosopher,  after  the  death 
of  his  wife  Faustina,  lived  with  a  concubine,  that  he  might 
not  bring  in  a  stepmother  on  his  children. 

Second  marriages  in  women  were  not  esteemed  honorable, 
and  those  who  had  been  married  to  but  one  husband,  or  re- 
mained in  widowhood,  were  held  in  particular  respect. 
Hence,  Univira  is  often  found  in  ancient  inscriptions  as 
an  epithet  of  honor.  Such  as  married  a  second  time  were 
not  allowed  to  officiate  at  the  annual  sacred  rites  of  female 
fortune. 

Among  the  Germans  second  marriages  were  prohib- 
ited by  law. 


30  MAKKIAGE  AND  DIVOECE. 

Marriage,  by  the  Mosaic  law,  was  subject  to  several  re- 
strictions. A  man  was  forbidden  to  marry  his  brother's 
widow,  unless  he  died  without  issue,  in  which  case  it  was 
enjoined  as  a  duty.  So  it  was  forbidden  to  marry  a  wife's 
sister,  at  least  while  the  wife  was  living,  which  was  not  for- 
bidden before  the  law,  as  appears  from  the  instance  of  Ja- 
cob. The  ancient  Eoman  law  is  silent  on  this  head,  and 
Papinian  is  the  first  who  mentions  it  on  occasion  of  the 
marriage  of  Caracalla.  The  subsequent  lawyers  stretched 
the  bonds  of  affinity  so  far  that  they  placed  adoption  on 
the  same  footing  with  nature. 

When  a  Laplander  intends  to  marry,  he  or  his  friends 
court  the  father  with  presents  of  brandy ;  if  he  gain  ad- 
mittance to  the  fair  one,  he  offers  her  some  eatable,  which 
she  rejects  before  company,  but  readily  accepts  in  private. 
Every  visit  to  the  lady  is  purchased  from  the  father  with  a 
bottle  of  brandy,  arid  this  prolongs  the  courtship  sometimes 
for  two  or  three  years.  The  priest  of  the  parish  at  last  cele- 
brates the  nuptials,  but  the  bridegroom  is  obliged  to  serve  his 
father-in-law  for  four  years  after  marriage.  He  then  carries 
home  his  wife  and  her  fortune,  which  consists  of  a  few  sheep, 
a  kettle,  and  some  trifling  articles.  It  is  a  part  of  the  cere- 
mony at  a  Lapland  wedding  to  adorn  the  bride  with  a  crown, 
ornamented  with  a  variety  of  gaudy  trinkets;  and,  on  these 
occasions,  the  baubles  are  generally  borrowed  of  their 
neighbors. 

In  Greenland  a  man  does  not  marry  till  he  is  about 
twenty  years  of  age,  when  he  chooses  a  woman  not  much 
younger  than  himself,  with  whom  he  expects  no  dowry  but 
her  clothes,  knife,  lamp,  and  sometimes  a  stone  boiler;  to 
her  skill  in  housewifery  and  sewing  he  pays  a  principal 
regard ;  and  the  women,  on  the  other  hand,  esteem  individuals 
of  the  opposite  sex  in  proportion  as  they  excel  in  hunting 
and  fishing. 

Polygamy,  although  by  no  means  common  among  the 
Greenlanders,  is  not  altogether  unknown,  and  so  far  from  its 
being  considered  a  disgraceful  thing  for  a  man  to  have  a 
pluralty  of  wives,  he  is  respected  for  his  industry,  by  which 
he  is  enabled  to  maintain  them ;  but  to  be  without  children  is 
deemed  a  matter  of  great  reproach,  and,  therefore,  in  such 


MAEBIAGE.  31 

cases,  the  matrimonial  contract  is  easily  broken,  for  the  man 
has  only  to  leave  the  house  in  anger,  and  not  return  again  for 
several  days,  and  the  wife,  understanding  his  meaning,  packs 
up  her  clothes,  and  removes  to  her  own  friends. 

In  Iceland  brides  at  their  wedding  are  adorned  in  a  very 
particular  manner ;  the  bride  wears  close  to  her  face,  round 
her  head-dress,  a  crown  of  silver  gilt.  She  has  two  chains 
round  her  neck,  one  of  which  hangs  down  very  low  before, 
and  the  other  rests  on  her  shoulders.  Besides  these,  she  has 
a  smaller  chain  on  the  neck,  from  which  a  heart  generally 
hangs,  that  may  be  open  to  receive  balsam  or  other  kind  of 
perfume. 

Among  the  Tartars,  the  Bratski  may  marry  as  many 
wives  as  they  can  purchase.  The  price  of  a  bride  is  paid  in 
cattle  of  different  kinds.  A  young  woman,  according  to  her 
beauty  and  character,  will,  among  the  rich,  receive  a  hun- 
dred horses,  twenty  camels,  fifty  horned  cattle,  two  hundre 
sheep,  and  thirty  goats.  The  nuptials  are  celebrated  on  thel 
same  day  that  the  cattle  are  delivered.  For  this  purpose 
they  erect  a  jurte  of  felt,  entirely  new,  of  a  white  color,  and 
remarkably  neat.  The  first  three  days  are  spent  in  feasting/ 
singing  and  dancing.  The  newly  married  couple  are  then 
permitted  to  depart  to  their  own  habitation. 

It  is  usual  among  some  of  the  tribes  for  a  young  pair 
to  live  together  as  man  and  wife  for  one  year ;  if  during  that 
time  the  woman  has  produced  a  child,  their  marriage  is  com- 
pleted ;  but  if  not,  they  either  separate  at  pleasure,  or  agree 
to  make  another  year's  trial.  Traces  of  this  custom  may  be 
discovered  in  the  law  of  Scotland,  according  to  which  a  mar- 
riage dissolved  within  a  year  and  a  day,  and  without  a  child, 
restores  each  -  party  to  the  same  situation  as  if  no  alliance 
had  existed. 

In  Circassia,  after  marriage  the  women  are  kept  very 
close,  not  even  their  husband's  own  relations  being  suffered 
to  vfsit  them ;  it  is  even  a  rule  among  this  people  that  the 
husbands  themselves  shall  never  be  seen  by  a  third  person  in 
the  presence  of  their  wives,  and  this  they  observe  strictly  to 
their  latest  years.  On  the  morning  of  the  celebration  of  her 
nuptials,  the  bride  presents  to  her  betrothed  a  coat  of  mail, 
helmet,  and  all  other  articles  necessary  to  a  full  equipment 
in  war. 

Among  the  Chinese,  marriage  is  particularly  protected, 


32  MARRIAGE  AND  DIVORCE. 

as  well  by  authority  of  the  law  as  by  the  general  spirit  of 
order  and  decorum.  The  adulterer  is  always  punished  with 
death,  and  the  same  punishment  is  usually  inflicted  upon 
him  who  seduces  an  unmarried  woman  from  the  paths  of 
rectitude. 

A  Chinese  enters  the  married  state  often  without  ever 
having  seen  the  woman  he  espouses ;  he  knows  nothing  of 
her  but  what  he  learns  from  some  female  relation,  who 
acts  the  part  of  a  match-maker.  But  if  he  is  imposed  on, 
either  with  respect  to  her  age  or  figure,  he  may  obtain  a 
divorce.  The  same  matrons  who  negotiate  the  marriage 
determine  also  the  sum  which  the  intended  husband  must 
pay  to  the  parents  of  the  bride,  for,  in  China  a  father  gives 
no  dowry  to  his  daughter,  but  receives  a  certain  sum  from 
his  son-in-law  as  a  purchase. 

The  parents  of  the  bride  fix  the  day  of  marriage,  always 
taking  care  to  consult  the  calendar  for  the  purpose  of  select- 
ing one  that  is  favorable  to  so  important  an  event.  At  the 
appointed  time  the  bride  is  placed  in  a  chair  or  close  palan- 
kin,  and  is  surrounded  by  persons  of  both  sexes,  carrying 
torches  and  flambeaux,  even  in  the  middle  of  the  day. 

A  troop  of  musicians  with  fifes,  drums,  and  hautboys, 
march  before  the  chair,  and  her  family  follow  behind.  The 
key  of  the  chair  in  which  she  is  shut  up  is  committed  to  the 
care  of  a  trusted  servant,  to  be  delivered  to  the  husband  only, 
who,  richly  dressed,  waits  at  his  gate  for  the  arrival  of  the 
procession.  When  it  approaches,  the  key  is  put  into  his 
hands,  by  means  of  which  at  the  first  glance  he  learns  his 
fortune. 

If  he  is  discontented  with  his  intended  spouse  he  sudden- 
ly shuts  the  chair  and  sends  her  back  to  her  relations,  but 
to  get  rid  of  her  it  costs  him  a  sum  equal  to  that  which  he 
gave  to  obtain  her. 

If  the  husband  is  contented,  she  descends  from  her  chair 
and  enters  the  house ;  she  is  then  committed  into  the  hands 
of  the  women,  who  partake  of  an  entertainment,  and  remain 
with  her  the  whole  day ;  the  male  part  of  the  guests  are 
treated  in  like  manner  by  the  husband.  This  part  of  the 
ceremony  prevails  in  all  Chinese  grand  entertainments :  the 
women  amuse  themselves  separately,  and  the  men  do  the 
same  in  another  apartment.  The  pomp  increases  according 
to  the  riches  and  rank  of  the  parties. 


MARKIAGE.  33 

Many  superstitious  observances  respecting  marriage,  pre- 
vail in  Arabia.  The  Arabs  believe  in  the  virtue  of  enchant- 
ment, and  in  the  art  of  tying  or  untying  the  knots  of  fate. 
The  miserable  victim  of  this  diabolical  art  addresses  some 
physician  or  old  woman,  who  is  skilled  in  sorcery.  Marriage 
is  reckoned  honorable  in  the  East ;  a  woman  will  marry  a 
poor  man  or  become  a  second  wife  of  a  man  already  married 
rather  than  remain  in  a  state  of  celibacy ;  the  men  are 
equally  disposed  to  marry,  because  their  wives,  instead  of 
being  expensive,  are  rather  profitable  to  them. 

A  plurality  of  wives  is  allowed  in  Tonquin,  and  the  hus- 
band may  claim  a  divorce  on  the  most  trifling  occasion, 
but  he  must  restore  the  effects  which  the  wife  possessed  at 
the  time  of  marriage.  The  same  indulgence  is  not  allowed 
to  the  women.  A  woman  convicted  of  adultery  is  thrown  to 
an  elephant,  bred  for  the  purpose,  who,  taking  her  up  with 
his  trunk,  tosses  her  in  the  air,  and  when  she  falls  tramples 
her  under  his  feet  and  crushes  her  to  pieces.  A  man  may 
sell  his  wives  and  children,  which,  in  time  of  scarcity,  the 
poor  make  no  scruple  of  doing. 

They  purchase  their  wives,  and  the  marriage  is  performed 
by  a  priestess,  who  sacrifices  some  animal  on  the  occasion, 
after  which  the  bride  is  conducted  home,  and  the  ceremony 
concludes  with  an  entertainment.  They  generally  marry 
with  their  own  tribe,  and  with  near  relations.  Some  of  the 
tribes  are  restricted  to  one  wife,  while  others  admit  of  plural- 
ity of  wives,  and  divorces  for  reasonable  causes.  Their 
funeral  ceremonies  are  like  those  of  the  Chinese. 

In  the  Pelew  Islands  the  sort  of  attention  paid  by  the 
men  to  their  wives  is  very  uncommon  among  the  uncivilized 
parts  of  the  globe.  Their  marriages  consist  in  a  solemn 
contract,  without  any  ceremony,  but  they  are  strictly  faithful 
to  one  another,  and  decency  is  uniformly  supported.  A 
pluralty  of  wives  is  allowed ;  men  in  general  may  have  two, 
a  rupack  three,  and  the  king  five.  They  name  their  children 
without  any  ceremony,  as  soon  as  they  are  born. 

Cecrops,  king  of  Athens,  first  denominated  marriage  as  a 
civil  contract,  and  he  made  elaborate  regulations  concerning 
it. 

The  modern  Greeks,  adverting  to  the  customs  of  the 
ancients,  have  retained  the  greatest  part  of  the  ceremonies 
which  were  formerly  used  in  the  celebration  of  nuptials.  On 


34  MARRIAGE  AND  DIVOBCE. 

the  eve  of  the  marriage  day  the  bride  is  led  by  her  female 
acquaintance  in  triumph  to  the  bath.  Numerous  attendants 
and  music  are  always  to  be  found  upon  these  occasions.  The 
bride,  profusely  adorned,  covered  with  a  red  veil,  proceeds 
with  a  solemn  pace,  supported  by  her  female  friends  and 
relations.  The  splendid  torch  of  Hymen  still  maintains  its 
place  among  the  modern  Greeks.  It  blazes  in  their  pro- 
cessions, and  is  an  attendant  in  the  chamber  of  the  new- 
married  couple,  where  it  remains  until  the  whole  is  con- 
sumed. If  by  any  accident  it  should  become  extinguished 
the  most  unfortunate  presages  would  be  drawn,  to  prevent 
which  unremitting  vigilance  is  used. 

The  bridegroom  and  bride,  before  their  presentation  at 
the  altar,  are  each  adorned  with  a  crown  or  chaplet,  which, 
during  the  ceremony,  are  exchanged  by  the  priest.  A  cup 
of  wine,  immediately  after  the  benediction,  is  first  given  to 
the  married  couple ;  it  is  then  delivered  to  the  sponsors,  and 
finally  to  the  witnesses  of  the  marriage. 

The  bride  is  supported  by  her  friends,  who  accompany 
her  home,  and  who  prevent  her  from  touching  the  threshold 
of  the  door,  which  would  be  reckoned  ominous.  She  is  then 
compelled  to  walk  over  a  sieve,  which  is  covered  with  a  carpet, 
on  the  way  to  her  husband's  room.  If  the  sieve  should  not 
crackle  as  she  passes  it  would  be  considered  as  very  preju- 
dicial to  the  lady's  honor,  but  all  are  happy,  provided  the 
ordeal  prove  propitious. 

In  the  Ottoman  Empire  a  man  may  have  but  one  wife 
of  the  first  class ;  she  is  legitimate,  and  her  consent  and  that 
of  her  parents  must  first  be  obtained  to  the  union,  but  he 
may  have  as  many  wives  of  the  second  class  as  he  can  main- 
tain, who  are  termed  wives  in  kebin,  or  tried  for  a  term,  and 
when  the  term  is  ended  the  contract  is  also  ended,  but  may  be 
renewed ;  and  the  third  class  authorized  is  that  of  slaves 
whom  he  may  buy  and  use  at  pleasure,  but  he  must  perform 
the  sexual  act  with  his  wife  of  the  first  class  at  least  once  a 
week,  else,  on  complaint,  he  must  dimmish  the  number  of 
his  concubines. 

Marriages  are  chiefly  negotiated  by  the  ladies :  it  is  only  a 
civil  contract  which  either  party  may  break.  The  terms  being 
agreed  on,  the  bridegroom  pays  down  a  certain  sum  of 
money,  a  license  is  taken  out  from  the  proper  magistrate, 
and  the  marriage  is  solemnized.  It  is  then  celebrated  with 


MARRIAGE.  35 

mirth  and  jollity,  and  the  money  is  usually  expended  in 
furnishing  a  house. 

In  Russia  the  lover  goes  to  the  bride's  parents  and  in  effect 
says:  "I  have  money,  where  is  your  merchandise?"  And 
if  the  consideration  is  sufficient,  the  contract  is  consummated 
without  any  reference  to  the  consent  of  the  bride. 

Among  the  lower  classes  in  Russia  the  nuptial  ceremonies 
are  peculiar  to  themselves.  When  the  parents  are  agreed  upon 
a  match,  though  the  parties  themselves  have  never  seen 
each  other,  the  bride  is  examined,  by  a  number  of  females. 
On  the  wedding-day  she  is  crowned  with  a  garland  of  worm- 
wood, and  after  the  priest  has  tied  the  nuptial  knot  his  clerk 
or  sexton  throws  a  handful  of  hops  upon  the  head  of  the  bride, 
wishing  that  she  may  prove  as  fruitful  as  that  plant.  She  is 
then  led  home,  with  abundance  of  coarse  ceremonies.  The 
barbarous  treatment  of  wives  by  their  husbands,  which  for- 
merly extended  to  the  right  of  putting  them  to  death,  is  now 
either  guarded  against  by  the  laws  of  the  country  or  by  par- 
ticular stipulations  in  the  marriage  contract. 

In  Asia  and  Africa,  as  well  as  among  the  aborigines, 
where  marriage  is  recognized  at  all,  the  husband  buys  the 
wife  of  the  parents,  sometimes  in  the  currency  of  the  country 
and  sometimes  by  presents.  Among  the  Lapps  and  Finns 
the  fee  is  so  many  reindeer.  Among  the  American  Indians 
when  a  man  marries  he  must  include  all  the  sisters  of  the 
bride.  I  once  visited  the  chief  of  the  Osages,  and  he  made 
an  exhibit  of  all  of  his  wives,  including  one  little  girl  five 
years  of  age.  Originally  there  was  no  ceremony  in  fades 
ecclesice,  but  the  husband  came  with  friends  to  the  bride's 
home  and  claimed  his  bride.  Sometimes  he  had  to  go 
through  a  mock  struggle,  but  the  denouement  was  in  all 
cases  the  same :  the  husband  carried  the  bride  triumphantly 
to  his  house  or  lodge,  sometimes  she  being  unwilling  and 
holding  back  or  resisting  with  more  or  less  pertinacity. 

Pope  Innocent  III.  made  it  a  sacrament  and  declared 
a  ceremony  by  a  priest  in  orders  essential  to  its  validity, 
and  all  the  Latin  countries  had  to  conform  to  it.  It  thus 
spread  till  it  embraced  all  civilized  people.  Law  writers 
and  courts,  however,  have  not  so  regarded  it,  but  almost 


36  MAKRIAGE  AND  DIVOECE. 

universally  have  treated  it  as  a  mere  civil  contract,  else  as 
a  status.  Blackstone  says:  "Our  law  considers  marriage 
in  no  other  light  than  as  a  civil  contract.  *  *  *  And 
taking  it  in  this  civil  light  the  law  treats  it  as  it  does  all  other 
civil  contracts,  allowing  it  to  be  good  and  valid  in  all  cases 
when  the  parties  at  the  time  of  making  it  were  in  the  first 
place  willing  to  contract — secondly,  able  to  contract,  and, 
lastly,  actually  did  contract  in  the  proper  forms  and  solemni- 
ties required  by  law.  Beeves  in  his  Domestic  Relations  de- 
fines it  as  a  mere  civil  transaction,  to  be  solemnized  in  such 
manner  as  the  legislature  may  direct.  Rutherford,  in  his 
Institutes,  mentions  it  as  "a  contract  between  a  man  and 
a  woman,  in  which,  by  their  mutual  consent,  each  acquires 
a  right  in  the  person  of  the  other  for  the  purpose  of  their 
mutual  happiness  and  for  the  production  and  education  of 
children.  "Judge  Kent  defines  it  as  a  contract  juri  gentium, 
and  consent  is  all  that  is  necessary.  Bacon  says  that 
marriage  is  a  compact  between  a  man  and  a  woman  for  the 
procreation  and  education  of  children.  In  Florida  the  court 
held  that  it  was  a  mere  contract.1 

Marriage  has  always  been  held  in  law  a  valuable  con- 
sideration on  which  to  predicate  a  contract  either  between 
the  husband  and  wife  or  third  persons — it  is  founded  on  the 
consent  of  the  contracting  parties — it  gives  vested  rights  both 
to  the  persons  and  property  of  each  of  the  contracting  parties, 
and  why  then,  when  it  possesses  all  these  ingredients  of  the 
definition  of  the  term  contract,  shall  it  be  said  not  to  be  em- 
braced within  its  provision  and  spirit  ?"2 

If  parties,  competent  to  contract,  in  the  presence  of  wit- 
nesses agree  together  to  be  husband  and  wife,  and  afterward 
cohabit  and  recognize  each  other  as  such,  it  is  a  sufficient 
marriage  in  New  York.  3 

Marriage  is  treated  merely  as  a  civil  contract  not  requir- 
ing legal  forms,  religious  ceremonies,  nor  any  special  mode  of 
proof,  in  New  York.  4 

1  4  Fla.,  23.    2  4  Mo.,  127.    8  24  How.  Pr.  455.    *  4  Bradf.  454. 


MABEIAGE.  37 

Strict  proof  (of  marriage)  is  only  required  in  prosecutions 
for  bigamy,  and  in  actions  for  criminal  conversation.  A 
marriage  may  be  proved  in  other  cases  from  cohabitation, 
reputation,  acknowledgment  of  the  parties,  reception  in  the 
family,  and  other  circumstances  from  which  a  marriage  may 
be  inferred.  No  formal  solemnization  of  marriage  was 
requisite.  A  contract  of  marriage  made  per  verba  de  presenti 
amounts  to  an  actual  marriage  and  is  as  valid  as  if  made  in 
facie  eccelesiae.  The  above  is  in  New  York.1 

A  common  law  marriage  is  not  good  in  Maine,  Mary- 
land, Massachusetts,  North  Carolina,  Tennessee,  Connecticut, 
Delaware  and  Kentucky.  There  must  be  a  ceremonial  mar- 
riage. In  Pennsylvania  the  marriage  must  be  in  writing  and 
signed  by  the  parties,  and  recorded  in  like  manner  as  a  deed 
must  be.  The  New  York  courts  have  grown  more  and  more 
lax,  and  her  highest  courts  have  declared  that  "a  man  and 
woman,  without  going  before  a  minister  or  a  magistrate,  with- 
out the  presence  of  any  person  as  a  witness,  with  no  previous 
public  notice  given,  with  no  form  of  ceremony,  civil  or  religi- 
ous, and  with  no  record  or  written  evidence  of  the  act,  and 
merely  by  words  of  the  present,  may  contract  matrimony. " 

In  the  territory  of  Arizona,  by  express  statute,  no  cere- 
mony is  necessary.2 

To  constitute  marriage  per  verba  de  presenti  no  particular 
words  are  necessary.  If  what  is  done  and  said  evidences  a 
present  assumption  by  the  parties  of  the  marriage  status,  that 
is  sufficient,  whatever  may  be  the  form  of  the  expression 
used.3 

In  an  Illinois  case  the  court  said :  "We  are  inclined  to 
the  opinion,  supported  as  it  is  by  the  statements  of  many 
of  the  most  eminent  text  writers,  as  well  as  by  the  decisions 
of  courts  of  the  highest  respectability,  that  inasmuch  as  our 
statute  does  not  prohibit  or  declare  void  a  marriage  not  sol- 
emnized in  accordance  with  its  provisions,  a  marriage  with- 
out observing  the  statutory  regulations,  if  made  according  to 

i  4  Johns,  53.    8  Rev.  Stat.,  1887.    3  24  111  app.  175. 


38  MARRIAGE  AND  DIVORCE. 

the  common  law,  will  still  be  a  valid  marriage,  and  that  by 
the  common  law  of  the  contract,  if  made  per  verba  de  presenti, 
it  is  a  sufficient  evidence  of  a  marriage."1 

If  a  man  and  woman  cohabit  together  in  an  illicit  way ; 
no  length  of  time  of  such  cohabitation  will  cause  it  to  ripen 
into  a  marriage,  and  the  presumption  is  that  an  illicit  con- 
nection, once  commenced,  still  remains  illicit,  but  the 
parties  may,  themselves,  change  it  into  an  innocent  and  law- 
ful commerce,  and  when  they  do  so,  and  evince  such  change 
by  clear  language  or  conduct,  and  continue  the  sexual  com- 
merce, it  is  thenceforth  beyond  their  power  to  change  back  to 
a  guilty  connection.  They  are  henceforth  married,  and  can 
only  change  such  condition  by  the  medium  of  divorce,  as  in 
other  cases. 

(I  adduce  the  following  authorities  in  support  of  a  common  law  marriage :  4 
Johns,  52.  8  Paige  574.  3  Tex.  450.  8  B.  Mon.  113.  18  Johns,  345.  23  N.  Y. 
90.  88  N.  Y.,  487.  91  N.  Y.  451.  1  Hill  270.  1  Barb  Ch,  241.  43  Iowa  228.  23 
Minn.  528.  49  Miss.  357.  45  Md.  155.  9  Paige  611.  70  111.  484.) 

It  must  be  borne  in  mind  that  cohabitation  and  repute  do 
not  constitute  a  marriage,  but  are  only  evidence  tending  to 
raise  a  presumption  of  marriage  of  more  or  less  strength,  ac- 
cording to  the  circumstances  of  the  case,  and  that  the  cohab- 
itation must  not  be  meretricious,  but  matrimonial,  in  order  to 
give  rise  to  this  presumption.2  The  two  essentials  of  a  valid 
marriage  are,  capacity  and  consent.  Marriage  is  a  civil  con- 
tract, and  no  ceremonial  is  indispensably  requisite  to  its 
creation.3 

It  has  been  said  that  marriage  although  beginning  in  a 
contract;  is  a  legal  status,  which  may  be  modified  from  time 
to  time  by  law.4 

In  a  case  where  a  man  introduced  a  woman  as  his  wife, 
and  likewise  gave  her  this  paper:  "I  Her  by  aknolidg  and 
own  that  I  am  maryed  to  Elsepeth  Curriaa  as  soon  as  I  got 
all  things  put  to  rights  or  my  affairs  are  that  I  am  not  to  see 
you  in  no  ways  distress,  until  that  I  provide  for  you  which  I 
hope  will  not  be  long.  This  is  all  from  yours,  David  Trum- 

170111.484.    2  121  Hi.  388.    46  N.  Y.,  Eq.  411.    3  45    N.  Y.Eq.  411.    «  51  Me. 
480.    5  Barb.  474.    9  Ind.  37.    4  B.  I.  387.     40  Miss.  164. 


MABKIAGE.  39 

bull."  Held,  a  valid  marriage.  In  a  case  where  there  were 
three  distinct  statements,  thus :  "We  swear  we  will  marry 
one  another,"  and  "I  take  you  for  my  wife  and  swear  never 
to  marry  another  woman,"  fdlowed  by  a  repetition  of  the 
same  :  Held,  a  valid  marriage. 

In  the  celebrated  Dalrymple  case  the  man  made  and 
signed  a  document  which  reads  thus  :  "I  do  hereby  promise 
to  marry  you  as  soon  as  it  is  in  my  power,  and  never  marry 
another."  The  woman  added:  "And  I  promise  the  same," 
signing  it.  This  document  was  endorsed,  "A  sacred  prom- 
ise." A  second  document  followed,  reading  thus :  "I  hereby 
declare  that  Johanna  Gordon  is  my  lawful  wife,"  signed  by 
him,  and  "I  hereby  acknowledge  John  Dalrymple  as  my  law- 
ful husband,  "signed  by  her.  A  third  document  read  thus: 
"I  hereby  declare  Johanna  Gordon  to  be  my  lawful  wife,  and 
as  such  I  shall  acknowledge  her  the  moment  I  have  it  in  my 
power. — J.  W.  Dalrymple."  "I  hereby  promise  that  nothing 
but  the  greatest  necessity  (necessity  which — situation  alone 
can  justify)  shall  enforce  me  to  declare  this  marriage. — J. 
Gordon  (now)  J.  Dalrymple.  Witness,  Charlotte  Gordon." 
The  last  two  papers  were  enclosed  in  an  envelope  marked, 
"Sacred  promises  and  engagements."  Held,  to  constitute  a 
valid  marriage. 

In  a  case  where  a  woman  had  had  a  child,  she  went  to  the 
alleged  father,  who  gave  her  the  following  paper :  "My  dear, 
as  a  full  testimony  of*my  regard  and  affection  for  you,  I  here- 
by agree  and  bind  myself  to  be  your  real  husband  in  all  senses 
of  the  word,  and  expect  only  the  common  ceremony  of  the 
outward  rule  of  marriage,  and  I  do  hereby  bind  and  oblige 
myself  to  accept  of  you  as  my  lawful  wife  and  is  ready  and 
willing  to  accept  the  common  rite  here  put  in  execution  in 
a  public  manner ;  or,  if  that  cannot  be  conveniently  done, 
suiting  to  all  parties,  I  am  agreeable  to  accept  to  any  meas. 
ure  you  think  proper  yourself,  so  as  we  may  be  united 
together  in  marriage.  To  this  I  sign  my  name  as  your  real 
husband."  Held,  to  constitute  a  valid  marriage. 


40  MARRIAGE  AND  DIVORCE. 

The  Catholic  church  holds  that  marriage  is  a  sacrament 
and  that  its  votaries  must  be  married  by  a  priest  in  orders ; 
and  it  not  infrequently  occurs  that  two  ceremonies  are  had, 
,  one  by  the  ordinary  methods  of  the  existing  civil  law  and  one 
"by  the  authority  of  the  church.  When  Napoleon  was  about  to 
wed  Maria  Louise  he  consulted  his  law  advisers  to  ascertain 
whether,  if  an  heir  to  the  throne  should  be  begotten  before  the 
sacerdotal  ceremony  was  performed,  it  would  be  legitimate, 
and,  on  being  answered  in  the  affirmative,  he  mounted  his  horse 
and  galloped  to  a  place  remote  from  Paris,  met  his  affi- 
anced and  consummated  the  marital  union  with  no  ceremony, 
although  some  days  thereafter  an  elaborate  sacerdotal  cere- 
mony was  had  in  Paris.  In  England  it  was  held  by  the  House 
of  Lords  that  a  religious  ceremony  must  be  had,  but  that  rule 
does  not  prevail  in  any  of  our  States.  Here,  if  a  ceremony 
be  desired,  it  may  be  as  well  performed  by  a  civil  officer,  as 
a  judge  or  justice  of  the  peace,  as  a  clergyman,  although  the 
prejudice  of  custom  makes  the  latter  coarse  the  one  usually 
adopted.  In  foreign  countries  an  United  States  consul  can 
generally  perform  the  ceremony.  But  it  is  now  well  settled 
that,  except  as  changed  by  express  statute,  no  clerical  or  lay 
intervention  is  any  more  necessary  to  form  this  contract  than 
is  needed  to  form  any  other  civil  contract.  Two  parties  of 
contracting  capacity  are  free  to,  themselves,  make  a  binding 
contract,  and  no  specific  form  is  necessary,  except  in  the  States 
mentioned,  nor  is  any  more  elaborate  form  or  ceremony  required 
in  case  of  marriage  except  in  the  States  named.  If  two  per- 
sons having  a  contracting  capacity  should  solemnly  declare  in 
presence  of  witnesses  that  they  would  take  each  other  for  hus- 
band and  wife  then  and  there,  per  verba  de  presenti,  it  would 
constitute  a  marriage,  especially  if  they  cohabited  together 
thereafter,  or  if  two  parties  having  a  contracting  capacity 
should  mutually  say  in  presence  of  witnesses  that  they  would 
thereafter  become  husband  and  wife,  and  then  should  there- 
after, within  a  reasonable  time,  cohabit  together,  it  would  be 
held  a  valid  marriage  from  time  of  cohabitation,  per  verba  de 


MARRIAGE  41 

futuro  cum  copula.  In  New  York  city  a  man  became  ac- 
quainted with  a  girl  who  was  employed  in  his  sister's  family, 
and  courted  her,  and  said  to  her  that  he  didn't  believe  in  mar- 
riage ceremonies,  and  that  a  marriage  without  was  as  valid ;  he 
then  took  her  in  a  carriage,  and,  while  riding,  put  a  ring  on  a 
finger  and  said :  "This  is  your  wedding  ring,  we  are  married. 
I  will  live  with  you  and  take  care  of  you  all  the  days  of  my 
life."  She  accepted  the  ring  and  assented,  and  they  drove  to 
a  house  in  Waveiiey  Place,  where  he  introduced  her  as  his  wife 
and  lived  with  her  as  such  for  five  weeks ;  then  claimed  that 
the  union  was  flagitious  and  meretricious — but  the  court  de- 
clared it  a  marriage ;  here  there  were  no  witnesses,  but  the  at- 
tending circumstances  of  the  ring  and  the  introduction  and 
living  together  as  man  and  wife,  sufficed.  Witnesses  are  not 
essential,  but  always  salutary,  in  order  to  furnish  the  required 
proof,  as  in  cases  of  conflict  each  party  would  differ  as  to 
what  happened.  In  some  States  a  common  law  marriage  is 
held  invalid  by  statute,  and  cannot  be  available  there;  in 
most  States  a  license  is  needed,  but  a  marriage  without  one  is 
good,  even  though  performed  by  an  officer  or  clergyman  who  is 
prohibited  by  law  from  celebrating  it ;  it  is,  however,  a  misde- 
meanor in  the  officer.  Proof  of  marriage  when  required  may 
be  made  by  any  person  who  may  have  witnessed  the  cere- 
mony, or  by  common  reputation  of  having  lived  and  cohabited 
together  as  husband  and  wife.  If  there  be  an  official  record, 
as  a  license  with  the  certificate  of  the  officiating  officer,  that 
will  be  received  as  evidence,  but,  unlike  other  record  evidence, 
it  is  not  regarded  as  the  best  evidence.  Mr.  Lamon,  in  his 
exhaustive  Life  of  Lincoln,  seems  to  consider  it  necessary 
to  establish  the  marriage  of  his  great  friend,  to  find  a  record 
of  the  marriage,  which  was  then  not  known,  but  which  existed 
in  Washington  County ;  no  such  record  evidence  is  necessary 
nor  could  it  be  adduced  in  one-third  of  the  cases,  extant. 
Many  marriages  are  celebrated  without  license,  and  no  record 
can  be  found  of  many  more  where  there  is  a  license.  Officials 
neglect  to  make  the  return,  and  much  carelessness  exists 


42  MAEEIAGE  AND  DIVOECE. 

among  custodians  about  them.  I  once  searched  in  an  office 
where  a  record  of  a  marriage  should  have  been,  for  three 
days,  and  found  no  trace  of  it.  Hence  record  evidence  is  not 
only  not  required,  but  likewise  is  weak  evidence,  if  found. 
The  alleged  marriage  of  Daniel  Clark  with  Zulime  de  Carriere 
(Mrs.  Games'  father  and  mother)  was  proven  by  a  sister  of 
Zulime,  who  testified  that  in  a  Catholic  church  in  Philadel- 
phia she  saw  the  ceremony  performed :  no  corroborating  proof 
existed — no  priest,  no  church  designated,  nothing  but  her  ipse 
dixit  that  she  saw  it,  many  years  previously ;  yet  the  title  to 
many  millions  of  property  depended  on  the  truth  or  falsity 
of  this  statement.  Many  marriages,  affecting  vast  property 
interests,  have  depended  upon  common  reputation  of  neigh- 
bors that  the  parties  were  married.  Confessions  and  admis- 
sions of  the  parties  themselves  are  competent,  but  when  made 
in  the  interests  of  the  confessing  parties  are  to  be  received 
with  great  caution,  but  when  made  against  interest  are  bind- 
ing as  other  admissions.  Instances  are  on  record  of  men 
rearing  two  distinct  families  by  two  distinct  reputed  wives. 
A  prominent  railway  operator ;  also  a  prominent  inventor, 
did  so  in  New  York ;  in  fact,  the  latter  had  several  families ; 
of  course  all  except  the  first  marriage  were  spurious.  A  mar- 
riage of  children  under  seven  years  of  age,  or  when  either  is 
under  seven,'  is  absolutely  void  and  a  nullity  in  every  State, 
but  a  marriage  when  one  or  both  are  between  the  ages  of 
seven  and  twelve  if  a  female  or  fourteen  if  a  male  (unless  the 
statute  changes  it)  is  good  as  an  inchoate  marriage  and,  un- 
less disaffirmed  when  the  one  of  non-age  reaches  the  age  of 
legal  consent,  will  be  valid  from  such  age  of  legal  consent. 
The  one  under  legal  age  of  consent  may,  on  reaching  such  age, 
confirm  it  by  cohabitation  or  other  acts,  as  kissing,  sending 
flowers,  declarations,  or  other  similar  acts,  and  when  so  ra- 
tified will  be  good,  but,  unless  so  ratified,  will  be  treated  as  a 
disaffirmance,  and  will  not  thereafter  bo  good.  Fourteen  in 
a  male,  and  twelve  in  a  female,  are  the  ages  of  legal  consent, 
and  any  marriage  between  parties  having  attained  those  ages 


MAKRIAGE.  43 

respectively,  if  otherwise  qualified,  will  be  valid,  except  in 
some  States,  where  they  are  held  to  be  void  or  voidable  if  un- 
accompanied by  parental  consent,  or  in  some  other  States, 
where  the  age  of  legal  consent  has  been  extended  to  a  later 
period,  generally  eighteen  in  a  male  and  sixteen  in  a  female. 
In  the  latter  cases  all  other  incidents  attaching  to  age  of 
legal  consent  apply  to  the  prescribed  conventional  age. 

A  very  common  occurrence  was  and  still  is  for  affianced 
parties  whose  plans  are  interdicted  at  the  place  of  domicil 
to  repair  to  a  jurisdiction  where  the  marriage  can  be  consum- 
mated. A  little  hamlet  in  Ohio,  on  the  Ohio  river,  called 
Aberdeen,  was  such  a  place,  and  thither  eloping  parties  came 
daily  from  Western  Virginia,  Kentucky  and  Ohio,  for  there 
was  a  blacksmith  there  who  also  was  a  justice  of  the  peace, 
and  who  would  at  any  hour  of  the  day  lay  down  his  ham- 
mer or  release  the  horse's  hoof  he  was  shoeing,  or  arise  in  the 
night,  in  order  to  splice  two'  dissevered  hearts,  requiring  no 
license  and  making  no  scrutiny,  and  thankfully  accepting  any 
fee  that  might  be  offered,  from  empty  thanks  or  twenty-five 
cents  to  ten  dollars.*  In  other  places  parties  frequently  cross 
State  lines  to  avoid  a  prohibiting  jurisdiction.  Divorced  per- 
sons in  New  York  barred  by  a  decree  from  remarrying,  have 
but  to  pay  four  pennies  for  ferriage  to  Jersey  City,  then  get 
married  and  return  to  New  York,  where  the  union  is  quite  as 
valid  as  in  New  Jersey,  nor  are  they  punishable  for  contempt 
of  court  for  the  act.  In  some  places  local  legislation  has 
cured  this  solecism  in  practice.  James  Parton,  the  author, 
married  "Fanny  Fern,"  the  authoress,  who  died,  leaving  an 
adult  daughter  by  a  former  husband,  whom  Parton  desired 
thereafter  to  marry,  she  also  consenting.  They  resided  at 
Newburyport,  Mass.,  and  on  consulting  a  lawyer  ascertained 
that  it  could  not  be  done  under  the  local  law  prevailing  there, 
but  it  was  not  inhibited  by  the  law  of  New  York,  hence  they 
repaired  to  that  jurisdiction  and  were  married,  and  it  was  a 

*£Lis  name  was  Shelton,  and  he  married  over  five  thousand  couples.  His  succes- 
sor in  office,  Massie  Beasley,  Esq.,  married  4,153  couples  during  sixteen  years,  up 
to  the  close  of  1887. 


44  MARRIAGE  AND  DIVORCE. 

valid  marriage  even  in  Massachusetts.  Gretna  Green  was 
a  hamlet  in  Scotland  just  across  the  line  from  England,  and 
thither  many  marital  pilgrims  were  wont  to  repair  to  avail 
themselves  of  the  loose  requirements  there  and  to  avoid  the 
rigid  formula  demanded  by  the  English  law.  An  early  mar- 
riage certificate  extracted  from  the  rustic  and  unofficial 
records  reads  thus,  and  was  held  good : 

"  GRITNA  GREEN  June  10,  1786. 

"This  is  to  sertfay  to  all  persons  that  may  be  scurned  that 
Charles  Blount  from  Salisburey  and  Elisbith  Ann  Wyiche 
from  the  same  place,  both  cumes  before  me  and  declares 
themselves  to  be  both  single  persons,  and  is  now  mareyed  by 
the  way  of  the  Chucrh  of  Scotland,  as  day  and  deet  above 
mentioned  by  me.  DAVID  Me  PARSON, 

C.  B.  BLOUNT, 
ELIZBETH  ANNWYCHE." 

From  the  above  suggestions  I  deduce,  as  a  general  rule, 
that  marriage  is  recognized  in  all  civilized  countries,  hence 
will  be  recognized  in  all,  and  a  marriage  valid  in  the  place 
of  its  celebration  will  be  valid  everywhere.  Such  is  the  gene- 
ral rule,  and  it  will  be  governed,  controlled  and  construed  by 
the  lex  loci  contractus,  or  place  where  celebrated.  Of  course 
it  must  be  a  monogamous  marriage ;  even  when  polygamy 
prevailed  in  Utah,  no  marriage  of  a  latter-day  saint  was  good 
outside*of  Utah,  except  the  first  one.  A  marriage  which  is 
clearly  fraudulent,  though  valid  by  the  lex  loci  contractus, 
would  be  invalid  elsewhere ;  as,  for  example,  in  case  of  a 
fraudulent  Utah  divorce,  the  court  having  no  jurisdiction  if 
followed  by  a  marriage  in  Utah  where  it  was  valid,  it  would  not 
be  valid  elsewhere.  The  converse  of  the  general  rule  is  equally 
authentic,  viz.:  a  marriage  invalid  by  the  law  of  the  place 
where  celebrated  is  invalid  everywhere  else,  the  lex  loci  con- 
tractus governing  in  that,  as  in  the  former  case.  Another  rule 
is,  that  a  marriage  prohibited  by  decree,  or  the  local  law  of 
the  parties'  domicil,  will  be  good  if  celebrated  elsewhere, 
but  the  parties  themselves  must  be  under  no  disability.  The 
marriage  of  an  insane  person  or  an  idiot,  or  one  already 


MARRIAGE.  45 

bound  by  a  valid  subsisting  marriage,  or  within  the  prohibited 
degrees,  or  when  party  is  impotent,  or  under  seven  years  of 
age,  and  the  like,  would  be  void  anywhere,  and  even  if  validated 
wholly  or  partially  by  the  lex  loci  contractus  would  acquire  no 
extra-territorial  validity.  In  Memphis  recently,  Miss  Mitchell, 
an  unquestioned  female,  was  betrothed  in  marriage  to  another 
unquestioned  female ;  had  the  marriage  been  consummated 
in  form  it  would  nevertheless  have  been  void.  Why  ?  Because 
the  object  of  marriage,  viz. :  sexual  intercourse  and  procrea- 
tion, would  have  been  impossible ;  and  a  marriage  between  an 
impotent  person  would  have  been  void  for  the  same  reason. 
The  marriage  between  an  insane  person  or  an  idiot  would  be 
void  by  reason  of  lack  of  consent  of  the  contracting  party, 
thus  handicapped.  The  invalidity  by  reason  of  consanguin- 
ity or  of  a  prior  marriage  depends  upon  moral,  considera- 
tions acceptable  in  all  civilized  countries.  The  exceptions 
to  the  rule  recognizing  in  other  jurisdictions  marriages  which 
were  valid  by  the  lex  loci  contractus,  are  those  involving  polyg- 
amy and  incest,  those  positively  prohibited  by  the  laws  of  a 
country  from  motives  of  policy,  and  those  celebrated  in  for- 
eign countries  by  parties  entitling  themselves,  under  special 
circumstances,  to  the  benefit  of  the  laws  of  their  own  coun- 
try. As  a  rule,  the  first  marriage  of  a  person  who  thereafter 
believes  in  the  right  to,  and  does  in  fact  add,  other  wives 
to  his  family  circle,  is  good,  but  in  England  was  discred- 
ited :  and  the  law  as  to  incest  simply  includes  cases  of  that 
sort  which  by  common  consent  are  deemed  incestuous, 
there  being  quite  a  disparity  of  opinion  on  the  class  of 
relations  who  might  be  legally  and  properly  married.1  Mar. 
riages  between  parents  and  children,  brothers  and  sisters, 
uncles  and  nieces,  aunts  and  nephews  should  not  be  tolerated 
anywhere,  but  marriages  between  first  cousins  and  stepson 
and  stepmother  are  allowed  in  some  States  and  denied  in 
others,  and  in  the  latter  classes  of  cases  it  is  believed  that 
if  a  marriage  between  such  parties  should  be  valid  by  the  lex 

1  Story  Conf.  of  Laws,  113. 


46  MARRIAGE  AND  DIVORCE. 

loci  contractus,  it  should  also  be  valid  everywhere.  Of  course  in 
the  case  of  prohibitions  depending  upon  the  positive  laws  of  a 
country,  they  can  only  apply  to  the  subjects  of  that  country  and 
celebrated  in  that  country.  Thus  a  marriage  of  a  subject  of 
Wurtemburg  in  Illinois,  in  violation  of  the  positive  law  of 
Wurtemburg,  was  held  valid  in  Illinois,  and  would  have 
been  held  valid  in  all  other  Christian  countries  except  Wur- 
temburg alone.1 

The  ground  upon  which  the  general  rule  of  the  validity 
of  marriages,  according  to  the  lex  loci  contractus,  is  maintained 
is  easily  indicated : 

"  All  civilized  nations  allow  marriage  contracts.  They 
are  juris  gentium,  and  the  subjects  of  all  nations  are  equally 
concerned  in  them.  Infinite  mischief  and  confusion  must 
necessarily  arise  to  the  subjects  of  all  nations  with  respect 
to  legitimacy,  successions  and  other  rights  if  the  respective 
laws  of  different  countries  were  only  to  be  observed  as  to 
marriages  contracted  by  the  subjects  of  those  countries 
abroad;  and  therefore  all  nations  have  consented,  or  are 
presumed  to  consent,  for  the  common  benefit  and  advan- 
tage, that  such  marriages  shall  be  good  cr  not,  according 
to  the  laws  of  the  country  where  they  are  celebrated.  By 
observing  this  rule  few  if  any  inconveniences  can  arise. 
By  disregarding  it  infinite  mischief  must  ensue.  Suppose, 
for  instance,  a  marriage  celebrated  in  France,  according  fo 
the  law  of  that  country,  should  be  held  void  in  England — what 
would  be  the  consequence  ?  Each  party  might  marry  anew 
in  the  other  country.  In  one  country  the  issue  would  be 
deemed  legitimate,  in  the  other  illegitimate.  The  French  wife 
would  in  France  be  held  the  only  wife,  and  entitled  as  such 
to  all  the  rights  of  property  appertaining  to  that  relation.  In 
England  the  English  wife  would  hold  the  same  exclusive 
rights  and  character.  What,  then,  would  be  the  confusion 
in  regard  to  the  personal  property  of  the  parties,  in  its  own 
nature  transitory,  passing  alternately  from  one  country  to  the 
other  ?  Suppose  there  should  be  issue  of  both  marriages, 
and  that  all  the  parties  should  become  domiciled  in  England 
or  France — what  confusion  of  rights,  what  embarrassment 
of  personal  and  conjugal  relations,  must  necessarily  be  cre- 
ated !  "2 

1  104  111.,  35.    2  Story  Oonf.  of  Laws,  Sec.  121. 


** 


MARRIAGE.  ^C^iFOf^  47 

In  the  case  I  have  named  of  the  marriage  of  an  impo- 
tent person  being  valid  where  celebrated,  yet  void  elsewhere, 
that  cannot  apply  to  an  unadjudicated  case.  For  example, 
if  a  marriage  of  an  impotent  person  was  rendered  valid  in  the 
place  of  contract  by  failure  to  sue  in  time  it  would  not  be 
invalid  in  another  jurisdiction  until  an  adjudication  was  had, 
and  the  facts  established. 

An  union  formed  between  a  man  and  woman  in  a  foreign 
country,  although  it  may  there  bear  the  name  of  marriage, 
and  the  parties  to  it  may  there  be  designated  husband  and 
wife,  is  not  a  valid  marriage  unless  it  be  formed  on  the  same 
basis  as  marriages  throughout  Christendom,  and  be  in  its 
essence  "the  voluntary  union  for  life  of  one  man  and  one 
woman,  to  the  exclusion  of  all  others."  l 

Marriage,  as  understood  in  Christendom,  is  the  voluntary 
union  for  life  of  one  man  and  one  woman  to  the  exclusion  of 
all  others.  A  marriage  contracted  in  a  country  where 
polygamy  is  lawful  between  a  man  and  woman  who  profess  a 
faith  which  allows  polygamy,  is  not  a  marriage  as  understood 
in  Christendom,  and,  although  it  is  a  valid  marriage  by 
the  lex  loci,  and,  at  the  time  when  it  was  contracted,  both  the 
man  and  the  woman  were  single  and  competent  to  contract 
marriage,  the  English  Mat.  Court  will  not  recognize  it  as  a 
valid  marriage  in  a  suit  instituted  by  ont  of  the  parties 
against  the  other.  2 

In  a  suit  between  a  British  subject  and  a  Japanese 
woman,  in  Japan,  "  evidence  having  been  adduced  which 
showed  that  the  marriage  was  valid  according  to  the  law  of 
Japan,  and  that,  by  such  law,  the  petitioner  was  precluded 
from  marrying  another"  —  held,  a  valid  marriage.  3 

A  marriage  solemnized  in  Illinois  between  subjects  of  a 
foreign  country,  domiciled  here  at  the  time,  in  strict  con- 
formity with  our  laws,  and  between  parties  competent  under 
our  laws  to  contract  the  relation,  is  valid  and  binding  here 

38  Gh.  D.  220.    «  1  P.  and  M.  130.    3  15  P.D.  76, 


48  MARRIAGE  AND  DIVORCE. 

notwithstanding  such  marriage  is  in  violation  of  the  positive 
law  of  the  country  of  which  they  are  subjects.1 

Another  rule  is  thus :  if  parties  are  stopping  in  a  foreign 
country,  and,  under  the  law  of  the  place,  they  cannot  marry, 
they  may,  nevertheless,  marry  under  the  same  conditions  as 
they  could  at  home,  and  it  will  be  good  at  home.  And  still 
another  rule  is*  thus  :  if  at  the  place  a  special  law  authorizing 
foreigners  to  marry  in  a  special  way  exists,  and  it  is  so  done,  it 
will  be  good  in  the  land  of  their  domicil.  A  foreign  consul  can 
marry  citizens  of  his  country  domiciled  abroad.  In  some 
States  whites  and  blacks  cannot  marry — such  marriages  are 
deemed  void.  Suppose  that  a  white  and  black  should  marry 
in  a  State  which  authorizes  it,  and  remove  to  a  State  which 
prohibited  it,  would  it  be  legal  there  ?  I  think,  on  principle, 
it  would,  but  the  authorities  are  divided — it  would  be  legal  in 
some  States,  and  not  so  in  others. 

Let  it  be  recollected,  however,  that  these  rules  have 
reference  only  to  the  persons  and  their  personal  status,  and  do 
not  apply  to  property,  nor  to  divorce,  nor  to  alimony.  Those 
subjects  are  governed  by  different  rules.  I  also  should 
remark  that,  even  in  consideration  of  the  main  questions, 
some  difficulties  are  also  encountered,  and  a  student  of  the 
subject  will  find  some  decisions,  noticeably  in  New  York, 
which  are  insolvable  by  any  rule  of  rhyme  or  reason ;  in  fact, 
some  New  York  decisions  are  inharmonious  with  decisions 
elsewhere  and  stand  out  alone  sui  generis  as  amazing  monu- 
ments of  the  glorious  uncertainly  of  the  law,  and  furnishing 
quasi  authority  for  that  recent  interesting  novel  by  Wilson, 
whose  gravamen  and  moral  is  that  one  man  may  be  the 
husband  of  his  wife  in  one  State,  and  another  man  may  be 
her  husband  in  another  State,  etc.,  all  legal,  as  well.  Not 
infrequently,  controversies  arise  concerning  priority  or 
validity  of  marriage  in  which  presumptions  are  required  to 
effect  a  solution,  and  in  those,  like  any  other  questions  in 
civil  controversies,  the  usual  presumptions  both  of  law  and 

i  104 11L  35. 


MARKIAGE.  49 

fact  are  applicable.  Thus,  when  parties  are  living  and 
cohabiting  together  the  presumption  of  innocence  prevails, 
viz. :  that  they  are  married,  and  not  that  they  are  living 
adulterously  together,  and  whoever  desires  to  assert  the  latter 
must  both  avow  and  prove  it.  Again,  it  may  be  shown  by 
general  reputation,  as  res  gestae,  that  parties  are  married, 
the  general  reputation  of  their  neighbors  being  competent; 
then  it  is  a  presumption  of  law  that  an  official  has 
done  his  duty,  and  whenever  that  question  arises  in 
connection  with  marriage,  as  in  other  cases,  the  presumption 
holds  good — as  where  a  clerk  is  forbidden  from  issuing  license 
to  a  minor,  it  is  presumed  he  did  not  do  so,  or  where  a  justice 
is  debarred  from  marrying  without  a  preliminary  license,  it 
is  presumed  it  was  granted.  The  presumption  that  an 
absent  and  unheard-of  person  does  yet  live  for  seven  years 
from  date  of  disappearance  holds,  hence  remaining  party  not 
justified  in  marrying  during  that  period,  except  as  changed 
by  statute,  while  the  presumption  that  he  or  she  is  dead 
after  seven  years  is  equally  strong,  and  a  party  is  justified  in 
remarrying  after  that  period  has  elapsed,  but  marriage  is 
void  if  first  party  turns  up  afterward.  Sometimes  the  pre- 
sumptions conflict,  as,  for  example,  the  presumption  of 
innocence  may  clash  with  the  common  reputation,  which  may 
be  that  the  parties  are  illicitly  connected,  in  which  case  the 
matter  is  at  large,  and  all  must  then  depend  upon  proof.  A 
cohabitation  illicitly  begun  can  never  ripen  into  marriage, 
unless  some  act  or  declaration  of  a  change  of  condition  is 
made  which  terminates  the  flagitiousness,  and  assumes  the 
normal  and  innocent  relation.  I  was  once  called  on  to 
advise  concerning  the  status  of  a  pair  in  high  walks  of  life. 
They  were  wary,  and  when  they  joined  their  barks  they 
expressly  agreed  together  that  it  was  not  to  be  marriage,  and, 
of  course,  it  was  not  marriage.  I  may  here  suggest  that  no 
man  or  woman  can  be  married  against  his  or  her  will :  hence 
no  matter  how  long,  persistent,  notorious,  or  affectionate  the 
cohabitation,  unless  the  parties,  each  for  himself  and  herself, 


50  MAEEIAGE  AND  DIVOKCE. 

expressly  agreed  together  that  the  union  was  one  of  mar- 
riage, it  will  not  be  so.  The  agreement  need  not  be  express, 
it  may  also  be  implied  from  circumstances,  but  it  must  be 
indubitable  and  clear;  nor  does  it  matter,  in  illustration 
of  the  principle,  that  one  of  the  parties  was  cruelly 
deceived.  A  party  may  be  proceeded  against  for  seduction 
or  breach  of  promise,  in  proper  cases,  but  no  marriage  is 
possible,  except  as  the  result  of  two  concurring  minds,  and 
if  the  nominal  or  putative  assent  of  either  or  both  is  obtained 
by  force,  fraud,  mistake  of  parties,  threats,  or  duress,  such 
marriage  is  voidable  by  the  party  aggrieved,  and  this  any- 
where, regardless,  or  by  lack  of  any  divorce  law,  on  chancery 
principles  in  general. 

This  principle  does  not  reach  cases  of  ordinary  deceit,  as 
false  representations  as  to  credit,  character,  or  fortune,  or 
even  chastity.  Ante-nuptial  unchastity  on  the  part  of  either 
is  no  cause  of  divorce,  except  by  statute  in  some  States,  and 
this,  although  it  was  made  an  issue  in  the  courtship. 
Pregnancy  before  marriage  is  a  statutory  cause  for  divorce 
under  conditions,  as  we  shall  see,  and  licentiousness  of  the 
male  is  so  in  one  State,  but  the  rule  is  as  I  have  stated  it,  and 
the  same  rule  will  apply  to  deceit  and  mistake  as  to  fortune 
and  other  matters.  In  cases  of  marriage  in  foreign  States, 
the  lex  loci,  or  place  of  the  court  or  jurisdiction,  will  supply 
the  rules  for  adjudication.  And  where  a  party  is  desirous  to 
invoke  the  lex  loci  contractus,  the  lex  domicilii  or  the  lex  rei 
sitae,  he  must  aver  and  prove  it.  The  courts  of  any  country 
are  presumed  to  be  only  acquainted  with  its  own  laws — those 
of  other  countries  are  to  be  averred  and  proved,  like  any 
other  facts  of  which  courts  do  not  take  judicial  notice;  they 
may  be  generally  proved  by  official  printed  statutes,  or  under 
the  attestation  of  the  Secretary  of  State,  or  other  custodian  of 
those  laws ;  if,  however,  they  be  not  statutory  laws,  they  may 
be  proven  by  the  nunc  jpative  testimony  of  persons  learned 
in  the  law  of  that  country  or  nation,  the  same  in  cases  of 
marriage  as  in  other  cases.  Anybody  relying  on  foreign  law 


MAERIAGE.  51 

must  prove  it :  courts  will  not  take  judicial  notice  of  it.  The 
legal  presumption  of  our  courts  is  that  common  law  prevails  in 
all  of  our  States,  except  Louisiana,  also  in  English  speaking 
countries,  and  that  the  civil  law  prevails  in  Louisiana  and 
the  continent  of  Europe.  But  although  courts  will  take 
notice  of  the  common  law  they  will  not  take  notice  of  the  civil 
law — that  must  be  established  by  proof  of  experts  in  that 
law;  even  an  assumed  printed  copy  of  the  Pandects  of 
Justinian  or  of  the  Code  Napoleon  would  not  prove  themselves — 
they  must  have  the  suppletory  oath  of  some  lawyer  of  the 
civil  law,  or  of  the  great  seal  and  signature,  or  of  the 
Secretary  of  State  of  the  country  in  question,  but  the  Louisi- 
ana civil  code  will  prove  itself. 

A  marriage  in  fun  is  a  nullity  of  itself,  although  parties 
might  be  involved  when  not  so  designed.  I  once  procured  in 
Chicago  a  divorce  for  a  Brooklyn,  N.  Y.,  girl,  who  got  unin- 
tentionally married  as  the  result  of  a  foolish  banter  between 
herself  and  a  young  man  whom  she  despised.  It  proved  un- 
fortunate, of  course. 

On  December  20th,  1878,  an  act  was  passed  by  the  South 
Carolina  legislature  legalizing  all  divorces  under  the  law 
which  the  negro  legislatures  had  enacted,  but  forbidding 
divorces  in  future.  The  New  England  idea  regarding  mar- 
riage, was,  that  it  was  a  divine  institution,  similar  to  the  idea 
of  the  Roman  church,  but  when  divorces  got  into  the  civil 
courts  they  found  it  necessary  to  term  it  a  civil  contract, 
and  since  then  it  has  been  designated  as  a  status,  or  condition, 
or  relation. 

There  can  be  no  indefinite  or  doubtful  position  in  this 
relation ;  parties  are  either  married  or  not  married ;  an  agree- 
ment to  marry  is  not  marriage,  nor  can  any  court  decree  a 
specific  performance  of  marriage ;  a  recalcitrant  party  may 
be  sued  for  seduction,  bastardy  or  breach  of  promise,  but  no 
result  can  be  attained  except  an  award  of  money  damages. 
If  a  party  is  forced  to  marry  to  get  rid  of  a  bastardy  charge, 
or  an  irate  father,  such  marriage  is  voidable  at  his  election, 


52  MARRIAGE  AND  DIVORCE. 

on  principle,  although  it  has  been  held  good  by  some  courts. 
In  a  ceremonial  marriage,  upon  the  bride  uttering  the 
cabalistic  phrase  "I  will,"  the  marriage  is  of  force,  nor  need 
the  officer  pronounce  it  so — it  is  so  ipso  facto ;  in  an  uncere- 
monial  marriage  the  moment  the  two  parties  mutually  agree 
to  be  then  husband  and  wife,  from  that  moment  they  are  so ; 
the  marriage,  however,  is  only  technically,  but  not  actually 
consummated  till  cohabitation  following  those  incidents,  has 
taken  place;  if  parties  agree  to  marry  when  they  cohabit  in 
the  future  (per  verba  de  futuro  cum  copula)  then  when  the 
copula  is  complete  that  instant  they  are  married — the  change 
from  one  condition  to  the  other  is  instantaneous.  Suppose, 
however,  that  after  the  ceremony  is  performed  or  the  contract 
per  verba  depresenti  is  made,  that  no  cohabitation  ever  occurs. 
What  condition  are  the  parties  in  ?  That  depends  wholly  on 
the  reason  why  cohabitation  did  not  take  place.  If  the  reason 
was  the  impotency  of  either  party,  the  marriage  is  generally 
void,  but,  at  all  events,  voidable  as  a  rule;  in  such  case  no 
marital  or  property  consequences  would  result ;  if,  however, 
there  was  no  other  impediment  to  the  marriage,  and  the 
parties  were  physically  able  to  consummate  the  marriage,  they 
still  would  be  married,  despite  the  non-cohabitation.  Of 
course,  in  case  of  a  non-ceremonial  contract,  the  failure  of 
cohabitation  would  afford  a  very  strong  presumption  that  the 
parties  did  not  make  a  contract  of  marriage,  and  such  a  con- 
tract not  followed  by  cohabitation  could  be  set  aside,  without 
much  effort ;  in  fact,  some  authorities  are  to  the  effect  that 
cohabitation  is  of  the  essence  of  a  non-ceremonial  marriage, 
but  I  think  that  in  a  well  attested  case  of  a  contract  depresenti 
it  would  be  valid  even  though  not  followed  by  cohabitation.  It 
is  different,  however,  in  a  contract  for  future  marriage :  the 
parties  then  say  in  substance :  "We  will  be  inter  married  to- 
gether next  month,'*  or  "as  soon  as  I  can  earn  one  hundred 
dollars,"  or  "when  I  return  from  New  York,"  or  "as  soon  as 
we  can  get  ready,"  or  "make  suitable  arrangements,"  and 
within  a  reasonable  time  thereafter  or  after  he  returns  from 


MABBIAGE.  53 

New  York,the  parties  cohabit — in  such  case, when  the  cohabita- 
tion is  complete,  the  marriage  is  consummate;  and  the 
cohabitation  may  be  presumed  from  circumstances,  as  that 
they  slept  together,  or  took  a  trip  together,  with  opportunity 
to  cohabit. 

Marriage  may  be  proven  by  reputation,  declaration  and 
conduct  of  the  parties. 

Every  intendment  of  law  is  in  favor  of  marriage.1 

A  foreign  marriage,  valid  according  to  the  law  of  the 
country  where  celebrated,  is  good  everywhere,  but  this  applies 
only  to  the  form  and  not  essentials  of  the  contract,  which  de- 
pend on  the  lex  domicilii,  i.  e.,  the  law  of  the  country  where 
the  parties  are  then  domiciled,  and  in  which  they  contemplate 
to  reside.2 

Everything  is  presumed  in  favor  of  validity  of  marriage.  3 

The  general  rule  that  a  marriage  valid  where  celebrated 
is  valid  everywhere,  as  a  general  rule  is  qualified  to  the  extent 
that  the  forms  of  entering  into  the  contract  are  regulated  by 
the  lex  loci  contractus ;  the  essentials  of  the  contract  depend  up- 
on the  lex  domicilii,  so  that  if  contrary  to  the  law  of  the 
domicil  is  void.  The  exceptions  to  the  rule  are  marriages  in- 
volving polygamy,  incest  and  those  prohibited  by  the  laws 
of  the  State  or  incapacity  of  the  parties  to  contract. 

The  following  is  believed  to  embody  the  correct  principle  : 
"All  nations  have  consented,  or  must  be  presumed  to  consent, 
for  the  common  benefit  and  advantage,  that  marriages  should 
be  good  or  not  according  to  the  law  of  the  country  where  they 
are  made.  By  obeying  this  law,  no  inconvenience  can  arise."4 

New  York,  Michigan,  Wisconsin,  Minnesota  and  Nevada 
have  each  defined  marriage  to  be  a  civil  contract,  so  far  as  its 
validity  is  concerned ;  Indiana,  Oregon  and  Washington  have 
defined  it  to  be  a  civil  contract  merely ;  Colorado  and  Kansas 
have  each  defined  it  to  a  civil  contract  to  which  the  consent 
of  parties  is  necessary;  Iowa,  Arkansas,  Louisiana,  New 
Mexico,  Wyoming,  Missouri,  Montana  and  Nebraska  hav^ 
each  defined  it  as  a  civil  contract  to  which  the  consent  of 

1  2  Green,  Ev.  462.    2  9  H.  L.  Ca3, 193.    3  1  K.  1  J.  4.    *  2  Mag.  Mon.  395. 


54  MARKIAGE  AND  DIVORCE. 

parties  capable  in  law  of  contracting  is  necessary.  The  other 
States  have  no  statute  laws  on  the  subject,  except  California, 
Dakota  and  Idaho,  which  provide  that  marriage  is  a  personal 
relation  arising  out  of  a  civil  contract  to  which  the  consent  of 
parties  capable  of  making  it  is  necessary.  The  ages  of  legal 
consent  to  marriage  are  thus  in  the  various  States : 

Male.       Female.  Male.        Female. 

Alabama,  17  14  Nebraska,  18  16 

Arkansas,  17  14  Nevada,  18  16 

California,  18  15  New  Hampshire,  14  13 

Delaware,  18  16  New  Mexico,  18  15 

Georgia,  17  14  New  York,  18  16 

Illinois,  17  14  North  Carolina,  16  14 

Indiana,  18  16  Ohio,  18  16 

Iowa,  16  14  Oregon,  18  15 

Kansas,  15  12  Texas,  16  14 

Kentucky  14  12  Utah,  14  12 

Louisiana,  14  12  Virginia,  14  12 

Michigan,  18  16  West  Virginia,  14  12 

Minnesota,  18  15  Wisconsin,  18  15 

Missouri,  15  12  Wyoming,  18  16 

Montana,  18  16 

Until  the  parties  have  reached  the  ages  respectively  of 
manhood  and  womanhood,  which  is  usually  21  for  a  male  and 
eighteen  for  a  female,  the  consent  of  parents  or  guardian 
is  necessary,  but  if  the  marriage  takes  place  after  the  age  of 
legal  consent  of  the  parties,  and  then  without  the  consent  of 
the  parents,  it  will  be  valid,  in  the  absence  of  statute.  In  most 
of  the  States,  to  make  a  marriage  formal  and  regular,  a  license 
and  ceremony  are  required,  but  marriage  is  good  without  the 
license,  and  if  properly  avouched,  without  the  ceremony  also 
except  as  changed  by  statute,  provided  the  parties  have 
actually  agreed  to  be  married,  and  in  pursuance  of  that 
agreement  have  freely  cohabited  together. 

The  following  is  a  list  of  persons  held  by  canonical  laws 
to  be  incapable  of  entering  into  the  matrimonial  relation, 
viz. : 


MARRIAGE. 

A  man  may  not  marry  his 
Grandmother.  Brother's  wife.* 


55 


Grandfather's  wife. 
Wife's  mother.  * 
Wife's  grandmother. 
Father's  sister.  * 
Mother's  sister.  * 
Father's  brother's  wife.  * 
Mother's  brother's  wife.  * 
Wife's  brother's  daughter. 
Wife's  sister's  daughter. 
Wife's  father's  sister. 
Wife's  mother's  sister. 
Wife's  daughter.  * 
Son's  wife.* 
Wife's  sister.* 


Son's  daughter.* 

Daughter's  daughter.* 

Brother's  son's  wife. 

Sister's  son's  wife. 

Mother.* 

Stepmother.* 

Daughter. 

Sister.* 

Son's  son's  wife. 

Daughter's  son's  wife. 

Wife's  son's  daughter. 

Wife's  daughter's  daughter. 

Brother's  daughter. 

Sister's  daughter. 


And  a  woman  may  not  marry  her 
Grandfather.  Husband's  son's  son. 


Grandmother's  husband. 

Husband's  grandfather. 

Father.* 

Stepfather. 

Husband's  father. 

Brother's  son. 

Sister's  son. 

Husband's  brother's  son. 

Husband's  sister's  son. 

Father's  brother.* 

Mother's  brother. 

Husband's  father's  brother. 

Husband's  mother's  brother. 

Son's  son. 


Husband's  daughter's  son. 
Brother's  daughter's  husband. 
Sister's  daughter's  husband. 
Father's  sister's  husband. 
Mother's  sister's  husband. 
Son, 

Husband's  son. 
Daughter's  husband. 
Brother. 

Husband's  brother. 
Sister's  husband. 
Son's  daughter's  husband. 


Daughter's    daughter's 
band. 


hus- 


Daughter's  son. 

But  in  our  country  death  does  away  with  the  prohibition 
of  affinity  as  a  rule,  although,  as  I  have  said,  it  was  found, 
some  years  ago,  that  James  Parton,  the  author,  could  not  in 
Massachusetts  marry  his  deceased  wife's  daughter,  so  the 
pair  resorted  to  New  York,  where  there  was  no  law.  And  in 
many  of  the  States  there  are  statutory  provisions  which  in- 
hibit marriages  within  the  canonical  degrees  of  consanguinity 

*Also  void  under  the  Levitical  law. 


56  MARBIAGE  AND  DIVOKCE. 

or  affinity,  which  see.  Also  the  consequences  of  violating 
them. 

An  assumed  marriage  between  an  uncle  and  niece,  or 
an  aunt  and  nephew,  is  expressly  made  void  by  stat- 
ute in  the  following  States,  viz. :  Alabama,  Arkansas, 
Arizona,  California,  Colorado,  Connecticut,  Delaware,  Idaho> 
Indiana,  Illinois,  Iowa,  Kansas,  Maine,  Maryland,  Massa- 
chusetts, Minnesota,  Michigan,  Mississippi,  Missouri,  Mon- 
tana, New  Hampshire,  New  Jersey,  Nevada,  Nebraska,  North 
Carolina,  Dakota,  New  Mexico,  Ohio,  Oregon,  Pennsylvania* 
Ehode  Island,  South  Carolina,  Tennessee,  Texas,  Vermont, 
Virginia,  West  Virginia,  Washington,  Wisconsin,  Wyoming ; 
nor  is  a  marriage  between  first  cousins  authorized  in  Ari- 
zona, Arkansas,  Colorado,  Illinois,  Indiana,  Kansas,  Mis- 
souri, Montana,  Nevada,  New  Hampshire,  the  Dakotas, 
Ohio,  Oregon,  Washington  and  Wyoming. 

Prohibited  degrees  differ  considerably  in  different  States. 
In  Maine,  Massachusetts,  Michigan,  South  Carolina  and 
Vermont,  persons  are  forbidden  to  marry  the  following : 

Mother.  Wife's  mother. 

Sister.  Grandmother. 

Wife's  Grandmother.  Sister's  daughter. 

Daughter.  Wife's  daughter. 

Granddaughter.  Wife's  granddaughter. 

Stepmother.  Brother's  daughter. 

Grandfather's  wife.  Sister's  daughter. 

Son's  wife.  Father's  sister. 

Grandson's  wife.  Mother's  sister. 
No  female  shall  marry  her  corresponding  relatives. 

In  Arizona,  Arkansas,  Colorado,  Illinois,  Kansas  and 
Wyoming  the  prohibition  is  thus :  Parents,  children,  grand- 
parents and  grandchildren  of  every  degree,  brothers  and 
sisters  of  half  or  whole  blood,  uncles  and  nieces,  aunts  and 
nephews  and  first  cousins.  In  Missouri,  California,  Idaho, 
New  Mexico,  Nebraska  and  Utah,  marriages  are  prohibited 
between  parents  and  children,  ancestors  and  descendants  of 
every  degree,  brothers  and  sisters  of  the  whole  and  half 


MAKBIAGE.  57 

blood,  uncles  and  nieces  and  aunts  and  nephews.  In  Da* 
kota  the  same ;  and  cousins  of  half  blood  or  whole  blood, 
stepfather  and  stepdaughter  and  stepmother  and  stepson. 
In  Florida,  the  Levitical  degrees  govern.  In  Georgia, 
same;  and  stepmother,  mother-in-law,  daughter-in-law, 
stepdaughter,  granddaughter  of  his  wife.  A  woman's  corres- 
ponding relations.  In  Nevada,  Ohio,  Montana  and  Indiana 
persons  not  nearer  of  kin  than  second  cousins  may  marry.  In 
Oregon,  Minnesota,  Wisconsin  and  -North  Carolina  mar- 
riage is  prohibited  between  persons  nearer  than  first  cousins, 
computing  by  rules  of  civil  law.  In  Alabama  the  prohibition  is 
thus :  Mother,  stepmother,  aunt  or  uncle's  widow,  sister,  half- 
sister,  niece,  daughter,  granddaughter,  son's  widow,  wife's 
daughter,  son's  daughter.  Corresponding  relatives  barred  to 
female.  In  Connecticut  a  man  can't  marry  mother,  grand- 
mother, granddaughter,  sister,  aunt,  niece,  stepmother,  step- 
daughter. No  female  can  marry  her  father's  son,  grand- 
father, grandson,  sou,  brother,  uncle,  nephew,  stepfather,  step- 
son. In  Khode  Island,  Maryland,  New  Jersey  and  District 
of  Columbia  the  prohibition  is  thus,  viz. :  Grandmother, 
grandfather's  wife,  wife's  grandmother,  father's  sister,  moth- 
er's sister,  stepmother,  mother,  wife's  mother,  daughter, 
wife's  daughter,  sister,  son's  wife,  son's  daughter,  daughter's 
daughter,  son's  son's  wife,  daughter,  son's  wife,  wife's  son's 
daughter,  wife's  daughter's  daughter,  brother's  daughter,  sis- 
ter's daughter.  Corresponding  relatives  are  prohibited  to  the 
female.  In  Delaware,  no  man  can  marry  his  grandmother, 
grandfather's  wife,  wife's  grandmother,  aunt,  son's  wife,  sis- 
ter's son's  daughter,  daughter's  daughter,  son's  son's  wife, 
daughter's  son's  wife,  mother's  stepmother,  wife's  mother, 
daughter's  wife's  daughter,  wife's  son's  daughter,  wife's 
daughter's  daughter,  brother's  daughter,  sister's  daughter. 
A  female  is  prohibited  from  corresponding  relatives.  In  New 
Hampshire  and  Iowa  marriage  is  prohibited  between  a  man 
and  his  aunt,  father's  widow,  wife's  mother,  daughter, 
wife's  daughter,  son's  widow,  sister,  son's  daughter,  daugh- 


58  MAKRIAGE  AND  DIVORCE. 

ter's  daughter,  son's  son's  widow,  daughter's  son's  widow, 
brother's  daughter,  or  sister's  daughter,  and  between  a  fe- 
male and  her  uncle,  mother's  husband,  husband's  father's  son, 
husband's  son,  daughter's  husband,  brother,  son's  son, 
daughter's  son,  son's  daughter's  husband,  daughter's  daugh- 
ter's husband,  brother's  son,  sister's  son,  and  in  New  Hamp- 
shire first  cousins  also.  In  Virginia  and  West  Virginia  a 
man  cannot  marry  his  mother,  grandmother,  stepmother,  sis- 
ter, daughter,  granddaughter,  half-sister,  aunt,  son's  widow, 
wife's  daughter,  or  her  granddaughter  or  stepdaughter's 
brother's  daughter  or  sister's  daughter,  and  a  female  cannot 
marry  corresponding  relatives,  nor  husband  of  her  brother's 
or  sister's  daughter.  In  New  York  marriage  is  prohibited 
between  parents  and  children,  including  grandparents  and 
grandchildren  of  every  degree,  ascending  and  descending, 
and  between  brothers  and  sisters  of  the  half  as  well  as  the 
whole  blood.  In  Pennsylvania  a  man  cannot  marry  his 
mother,  father's  sister,  mother's  sister,  sister,  daughter, 
daughter  of  his  son  or  daughter,  father's  wife,  son's  wife, 
wife's  daughter,  or  daughter  of  his  wife's  son  or  daughter,  and 
a  female  may  not  marry  her  corresponding  relatives.  In 
Kentucky  a  man  may  not  marry  his  mother's  grandmother's 
sister,  daughter  or  granddaughter,  nor  the  widow  or  divorced 
wife  [of  his  father,  grandfather,  son  or  grandson,  nor  the 
daughter,  granddaughter,  mother  or  grandmother  of  his  wife, 
nor  the  daughter  or  granddaughter  of  his  brother  or  sister, 
nor  the  sister  of  his  father  or  mother,  and  a  female  shall 
not  marry  her  corresponding  relatives.  In  Mississippi  a  man 
shall  not  marry  his  mother  or  step-mother,  sister,  daughter, 
granddaughter,  his  half-sister  or  aunt,  son's  widow,  wife's 
daughter  or  wife's  granddaughter,  or  his  niece ;  and  a  female 
is  correspondingly  prohibited.  In  Louisiana  marriage  is 
barred  between  lineal  ancestors  and  descendants  and  brothers 
and  sisters  of  the  half  or  whole  blood,  uncles  and  nieces  and 
aunts  and  nephews.  In  Tennessee,  marriage  is  prohibited 
between  lineal  ancestor  and  descendant,  and  the  lineal  an- 


MARRIAGE.  59 

cestor  and  descendant  of  either  parent  and  the  child  of  a 
grandparent,  and  the  lineal  descendant  of  husband  or  wife 
and  the  husband  and  wife  of  a  mrent  or  lineal  descendant. 
In  Texas  no  man  shall  marry  his  mother,  aunt,  daughter, 
sister,  mother,  half-sister,  granddaughter,  father's  widow,  his 
son's  widow,  wife's  daughter,  daughter  of  wife's  son  or  daugh- 
ter :  and  a  female  cannot  marry  corresponding  relatives.  In 
Washington,  marriage  is  barred  between  persons  nearer 
than  second  cousins,  either  of  half  or  whole  blood,  com- 
puted by  rules  of  the  civil  law,  and  between  a  man  and  his 
aunt,  father's  widow,  wife's  mother,  daughter,  granddaughter, 
son's  widow,  sister,  wife's  daughter,  son's  son's  widow,  daugh- 
ter's son's  widow,  brother's  daughter,  or  sister's  daughter; 
and  between  a  female  and  her  corresponding  relatives. 

THE     REGULATIONS    OF   THE    CATHOLIC    CHURCH. 

Under  the  canon  of  the  Koman  Church  a  marriage  is 
not  valid  if  the  following  incidents  and  obstacles  exist : — 
Compulsion,  mistake,  improper  stipulations,  sexual  impo- 
tency,  insanity  or  mental  weakness,  lack  of  sufficient  age, 
consanguinity  within  prohibited  degrees,  affinity  within  pro- 
hibited degrees;  spiritual  relationship,  as  god-child  and 
sponsor ;  legal  relationship,  as  guardian  and  ward ;  quasi-af- 
finity,  as  betrothal  to  a  relation ;  existing  undissolved  mar- 
riage, member  in  the  priesthood,  membership  in  a  religious 
order,  difference  in  religion,  as  Christians  and  Hebrews  and 
Mohammedans ;  elopement  involving  force. 

A  perpetual  divorce  a  mensa  et  tJioro  may  be  decreed  for 
adultery,  wilful  desertion  or  joining  by  one  of  the  parties  of 
a  religious  order  without  permission  of  the  other.  A  tempo- 
rary divorce  a  mensa  et  thorois  authorized  for  apostacy  from 
Christianity,  seduction  to  vice  or  felony,  cruelty  or  assault 
endangering  life  or  health,  long  standing  grievance  or  mortifi- 
cation, infectious  disease  of  long  standing,  wilful  desertion, 
violation  of  duty  endangering  the  civil  or  property  rights  of 
the  other. 

Divorce  a  vinculo  matrimonii  is  not   allowed    at  all.     A 


60  MABRIAOE  AND  DIVORCE. 

marriage  between  unbelievers  becomes  dissolved  if  one  of 
the  parties  becomes  a  Christian  and  makes  a  valid  Christian 
marriage,  provided  the  unconverted  unbelieving  spouse  will 
not  continue  the  marriage  relation  with  the  other,  or  will 
not  continue  it  without  reviling  the  Creator.  A  valid  Chris- 
tian marriage  not  consummated  may  be  dissolved  by  the 
spiritual  death  of  one  of  the  parties,  who  takes  the  vows  of  a 
religious  order,  or  by  a  dispensation  of  the  Pope. 

LICENSE   AND    CONSENT 

In  Maine  the  town  clerk  issues  the  license,  the  fee  being 
50  cents,  and  the  marriage  intentions  must  be  filed  in  the  of- 
fice five  days  before  issue  of  license.1  In  New  Hampshire  the 
town  clerk  issues  the  license,  the  fee  being  one  dollar,  and  the 
intentions  must  be  filed  in  the  office  of  issue  before  the  license 
granted.2  In  Vermont  the  town  clerk  issues  the  license, 
which  must  be  issued  in  the  town  in  which  the  groom  lives 
if  he  lives  in  the  State — if  not,  then  in  the  town  where  the 
bride  lives;  if  neither  live  in  the  State  then  in  the  town 
where  the  marriage  is  solemnized :  fee,  50  cents.3  In  Massa- 
chusetts the  town  clerk  or  registrar  issues  the  license;  fee, 
50  cents ;  he  should  inquire  concerning  age  and  competency ; 
notice  of  intention  must  be  filed  in  office  before  license  is 
issued.4  In  Ehode  Island  the  town  or  city  clerk  issues  (in  Provi- 
dence, the  registrar  of  births,  marriages  and  deaths) ;  fee,  50 
cents ;  the  officer  should  ascertain  age  and  competency  of  par- 
ties to  contract ;  it  must  issue  in  town  or  city  where  the  parties 
reside,  and  if  any  objection  to  the  marriage  is  made  in  writ- 
ing the  ceremony  cannot  proceed  till  objection  be  removed.5 
In  Connecticut  the  registrar  of  births,  marriages  and  deaths 
issues ;  it  must  be  in  the  town  where  the  marriage  is  to  be 
celebrated,  and  the  officer  must  make  inquiry  as  to  the  age 
and  competency  of  the  parties.6  In  all  the  New  England  States 
the  authority  is  termed  a  certificate.  In  New  York  and  New 
Jersey  no  license  is  required.  In  Pennsylvania  the  clerk  of 

1  Rev.  Stat,  Maine,  1883,     2  Gen.  Laws,  1878,  N.  H.     3  Rev.  Laws,  Vt.  1880. 
«  Pub.  Laws,  Mass.,  1882.    &  Pub.  Stat.,  R.  I.,  1882.    6  New  Stat.,  Conn.,  1888. 


MARRIAGE.  61 

the  Orphan's  court  issues,  the  charge  being  50  cents,  and  50 
cents  additional  if  one  parent's  consent,  and  50  cents  more  if 
both  parents'  consent,  is  required ;  license  must  issue  from 
county  where  marriage  is  to  be  celebrated  and  clerk  must 
examine  parties  as  to  the  legality  of  marriage  proposed.1 
Parties  may  get  special  license  to  marry  themselves,  which  the 
Quakers  always  do.  In  Delaware  clerk  or  justice  of  the  peace 
may  issue,  the  fee  varying  from  $2.33  to  $2.83,  according  to 
locality.  Bond  required  that  parties  are  entitled  to  marry. 
No  license  is  required  if  banns  have  been  published  twice 
in  church.2  Maryland  license  is  issued  by  the  clerk  of  circuit 
court  and  in  Baltimore  by  clerk  of  court  of  common  pleas;  fee, 
$1.00.  It  must  issue  in  county  where  ceremony  is  to  take  place. 
Clerk  must  examine  parties  under  oath  as  to  validity  of  the 
proposed  marriage.  No  license  required  if  banns  have  been 
published  three  times.  Quakers  may  marry  without  license.3 
Virginia,  the  clerk  of  county,  city  or  corporation  court  may 
issue,  the  fee  being  $1.00;  it  must  issue  from  the  place 
where  the  bride  lives.4  In  West  Virginia  the  clerk  of  the 
county  court  where  the  bride  resides  may  issue;  fee,  $1.00.5 
In  North  Carolina  the  registrar  of  deeds  issues;  fee  $1.50. 
License  must  issue  in  county  where  marriage  is  to  take  place 
and  officer  must  ascertain  age  and  competency  of  parties.6 
In  South  Carolina  no  license  required.7  In  Georgia  the  ordi- 
nary, or  clerk  to  ordinary,  issues; fee,  $1.50.  Officer  must 
ascertain  age  and  competency  of  parties,  and  license  must 
issue  in  county  where  bride  lives,  but  no  license  is  required  if 
there  has  been  publications  of  banns.8  In  Florida  clerk  of 
circuit  court  issues ;  fee,  $2.00,  license  to  issue  in  county 
where  woman  resides.9  In  Alabama  the  probate  judge  of  the 
county  where  the  woman  resides  issues;  fee,  $1.50.10  In 
Mississippi  the  clerk  of  the  circuit  court  where  the  woman 
resides  issues;  fee,  *$3.00,  and  a  bond  is  required  of  legality 
of  marriage.11  In  Louisiana  clerk  of  the  district  court; 

1  Bright.  Dig.,  1883,  Penn.  Laws.  2  Rev.  Stat.,  Del.,  1884.  3  Rev.  Code,  Md., 
1878.  *  Code,  Va.,  J887.  5  Code,  W.  Va.,  1887.  •  Code,  1883,  N.  C.  7  Gen.  Stat., 
1882.  8  Code,  Ga.,  1882.  9  McCleilan's  Dig.,  1881.  10  Rev.  Code,  1886,  Ala. 
»»  Rev,  Code,  Miss.,  1880. 


62  MARRIAGE  AND  DIVORCE. 

in  New  Orleans  by  Board  of  Health  and  judges  of  city  courts ; 
fee,  $2.00.  Bond  required  of  validity  of  marriage,  license 
to  issue  in  county  where  marriage  is  to  occur,  hearing  to  be 
had  before  judge  if  opposition  be  made.1  In  Texas  the  clerk 
of  county  court  issues;  fee  $1.50.2  In  Arkansas  clerk  of 
county  court  issues;  fee  $2.50;  bond  required  for 
validity  of  marriage  In  Kentucky  county  clerk  issues;  fee, 
$1.50.  County  where  female  resides.3  In  Tennessee,  clerk 
of  county  court  issues;  fee,  $1.00;  party  must  give  bond  as 
to  validity  and  license  must  issue  in  county  where  bride 
lives  or  where  marriage  is  solemnized.4  In  Missouri  the 
county  recorder  issues  the  license;  fee,  $1.00.  In  St.  Louis 
it  is  issued  by  the  recorder.  The  officer  must  ascertain  the 
age  and  competency  of  the  parties.5  In  Ohio  the  probate 
judge  issues  in  county  where  woman  lives;  fee,  75  cents; 
license  not  required  if  banns  are  published  where  woman 
lives,  twice.  Officer  must  examine  as  to  age  and  compe- 
tency.6 In  Michigan  the  county  clerk  issues ;  fee,  50  cents ; 
he  should  examine  as  to  age  and  competency  of  parties; 
must  issue  in  county  where  one  of  the  parties  resides.7  In 
Indiana  the  clerk  of  the  circuit  court  issues ;  fee,  $2.00.  He 
should  examine  as  to  age  and  competency  of  parties;  license 
not  required  from  Quakers.8  In  Illinois  the  license  is  issued  by 
the  county  clerk  where  marriage  is  to  come  off;  fee,  in  Chicago 
$1.50,  elsewhere  $1.00;  he  must  examine  as  to  age  and  com- 
petency.9 In  Wisconsin,  no  license.10  In  Minnesota  the  clerk 
of  the  district  court  issues ;  fee,  $1.00  in  Minneapolis,  $1.50  in 
St.  Paul,  $2.00  elsewhere ;  clerk  must  examine  as  to  age,  etc. ; 
license  to  issue  in  county  where  female  resides,  or,  if  she  be  a 
non-resident,  in  the  county  where  marriage  is  celebrated.11  In 
Iowa  clerk  of  circuit  court  issues ;  fee,  $1.00 ;  license  to  issue  in 
county  where  marriage  occurs,  and  clerk  must  inquire  into 
age  ,  etc. ;  no  license  required  for  Quakers.12  In  Kansas  the 

1  Rev.  Civ.  Code,  La.,  1887.  2  Rev.  Stat.,  1879,  Tex.  3  Gen.  Stat.,  Ky.,  1883. 
*  Code,  1884,  Tenn.  &  Rev  Stat.,  Mo.,  1879.  6  Rev.  Stat.,  1886,  Ohio.  7  Howell's 
An.  Stat.,  1882.,  Mich.  8  Rev.  Stat.,  1881.  Indiana.  »  S.  &  C.  An.  Stat.,  111.,  1885. 
w  Rev.  Stat.,  1878,  Wis.  »  Gen.  Stat.,  1883,  Minn.  12  McClain's  An.  Stat.,  1884. 


MARRIAGE.  63 

probate  judge  of  "proper"  county  issues;  fee,  $2.00,  but 
none  required  of  Quakers;  judge  required  to  ascertain  age, 
etc.1  In  Nebraska  the  county  judge  where  marriage  is  to 
take  place,  issues  ;  fee,  $1.50,  and  judge  should  make  inquiry 
as  to  age,  etc.  In  Colorado  county  clerk  issues;  fee,  $1.00, 
and  he  must  examine  as  to  age  and  competency.2  In  Utah 
"clerk  of  probate  court  of  county  where  female  resides  issues  ; 
fee,  $2.25,  and  clerk  must  inquire  as  to  age,  etc.3  In  Arizona 
the  county  recorder  issues  ;  fee,  $2.50.4  In  California  the 
county  clerk  of  county  where  marriage  is  to  be  celebrated 
issues  ;  fee,  $2.00  ;  clerk  must  inquire  as  to  age,  etc.  ;  where  un- 
married persons  have  lived  together  as  man  and  wife  they  may 
be  married  with  no  license.5  ID  Oregon  the  county  clerk  issues, 
unless  banns  have  been  published  twice,  when  none  required  ; 
fee  $2.00  to  $2,67,  according  to  locality;  must  issue  where 
woman  lives;  officer  must  inquire  as  to  age-,  etc.6  In  Dis- 
trict of  Columbia  clerk  of  Supreme  Court  issues;  fee,  $1.00.7 
In  Montana  the  probate  judge  issues  ;  fee,  $2.00  ;  he  must 
issue  where  marriage  is  to  occur,  and  must  scrutinize  as  to 
age  and  competency.8  In  Nevada  the  county  clerk  issues  ; 
fee,  $2.00  ;  he  must  scrutinize  as  to  age  and  competency  of 
parties  and  it  must  emanate  from  the  county  where  one  of  the 
parties  live.9  In  Washington  the  county  auditor  issues  ;  fee, 
$3.00.10  In  Wyoming  the  county  clerk  of  the  county  where 
marriage  is  to  take  place,  issues,  and  he  must  inquire  into 
age,  etc.  ;  fee,  $2.00.n  In  Idaho,  New  Mexico  and  the  Da- 
kotas,  no  license  is  required. 

Verbal  or  written  consent  of  parents  or  guardian  is 
required  when  parties  are  of  non-age  in  Alabama,  Arkansas, 
Kentucky,  Maryland,  Massachusetts,  Minnesota,  Missis- 
sippi, Missouri,  Nebraska,  Nevada,  New  Jersey,  New  Mexico, 
Ohio,  Pennsylvania,  Utah,  Virginia,  West  Virginia,  Wisconsin, 
and  Wyoming.  Written  consent  is  required  in  California, 

1  Com.  Laws  1885,  Kansas.  2  Qen.  Stat.,  1883,  Colo.  3  Com.  Laws,  1888,  Utah. 
*  Arizona  Rev.  Stat.,  1887.  5  Deerine's  Code,  Cal.,  1885.  6  Hill's  An.  Laws,  1887, 
Oregon.  7  U.  S.  Stat.  at  Large.  8  Com.  Laws,  Mont.,  1887.  9  Gen.  Stat.,  Nev., 
1885.  lo  Code,  1881,  Wash.  "  Rev.  Stat.,  Wyo,  1887. 


OF  THE 


64  MAKBIAGE  AND  DIVORCE. 

Connecticut,  Georgia,  Iowa,  Maine,  Montana,  North  Carolina, 
Oregon,  Ehode  Island,  Vermont  and  Washington.  In  Kan- 
sas, Michigan,  New  Hampshire,  New  York  and  South  Caro- 
lina, and  States  not  named,  no  specifications  made. 

MARRIAGE    AFTER   DIVORCE. 

In  New  York  the  defendant  convicted  of  adultery  cannot 
remarry  till  the  death  of  the  plaintiff,  but  the  court  may 
allow  defendant  to  remarry  after  remarriage  of  plaintiff,  if 
five  years  have  elapsed.  Plaintiff  may  remarry  at  any  time. 
In  Vermont  the  defendant  cannot  marry  within  three  years 
from  decree.  In  Massachusetts  defendant  cannot  marry  for 
two  years  from  date  of  decree.  In  Louisiana  the  defendant, 
when  adultery  is  charged,  cannot  marry  the  co-respondent.  It 
would  be  bigamy.  Nor  can  the  wife  marry  for  ten  months 
after  decree  for  any  reason.  In  the  Dakotas,  if  the  decree  be 
for  adultery,  the  plaintiff  may  marry  again,  but  the  defendant 
can  marry  none  but  the  plaintiff,  till  death  of  plaintiff.  In  In- 
diana, when  notice  is  by  publication,  the  plaintiff  cannot  marry 
again  for  two  years.  In  Kansas,  neither  party  can  marry  for 
six  months,  nor  till  decision  of  upper  court,  if  appeal  is 
taken.  In  Georgia  the  question  of  remarriage  is  referred  to 
a  jury.  In  Alabama  the  court  may  allow  a  remarriage.  In 
Maryland  the  court  may  order  that  the  defendant  cannot 
remarry  during  life  of  plaintiff,  when  the  charge  was  adultery 
or  abandonment.  In  Delaware  the  defendant  cannot  marry 
the  co-respondent  in  adultery.  In  Michigan  the  court  may 
bar  a  remarriage  of  defendant  for  a  term  less  than  two 
years.  In  Mississippi  the  court  may  order  that  the  defen- 
dant in  adultery  cannot  remarry.  In  Nebraska  the  remar- 
riage of  plaintiff  is  not  permitted  till  time  exhausted  for  an 
appeal,  and,  if  taken,  not  till  its  determination.  Same  in 
Oregon  and  Washington  as  to  both  parties.  In  Pennsylvania 
and  Tennessee,  if  the  divorce  is  for  adultery,  the  defendant 
cannot  marry  the  co-respondent  during  life  of  plaintiff.  In 
Virginia,  if  the  divorce  is  for  adultery,  the  guilty  party  may 
be  prohibited  from  remarrying,  but  such  order  may  be. 


MARRIAGE.  65 

revoked  by  the  court.  In  New  Hampshire,  Minnesota  Wis- 
consin, New  Jersey,  Missouri,  Florida,  Illinois,  Wyoming, 
Iowa,  Montana,  Texas,  Colorado,  West  Virginia,  Nevada  and 
Maine  it  is  provided  that  no  punishment  shall  be  had  for 
adultery  or  bigamy  if  parties  lawfully  divorced  shall  marry 
again.  And  in  Connecticut,  Ehode  Island,  California,  Ar- 
kansas, Texas,  North  Carolina,  Arizona,  Kentucky  and  Idaho 
no  restriction  is  made  upon  remarriage  after  divorce. 

But  any  provision  restraining  marriage  is  a  brutem  ful- 
men,  as  a  rule,  inasmuch  as  prohibited  parties  can  repair  to 
another  State  and  remarry,  and  return  to  the  State  of  the  pro- 
hibition if  they  desire,  and  the  marriage  will  be  valid  every- 
where. They  will  not  even  be  punished  for  a  contempt  of 
court.  But  some  recent  statutes  have  changed  this. 

VALIDITY   OF   MARRIAGES  CONTRACTED  BEYOND    THE  STATE. 

In  Nebraska,  Kansas,  Kentucky,  California,  Dakota, 
Utah,  Wyoming,  New  Mexico,  Arizona,  Idaho,  Montana,  Ar- 
kansas, Colorado,  their  statutes  provide  that  marriage  con- 
tracted beyond  the  boundaries  thereof,  if  valid  where  con- 
tracted, are  also  valid  in  those  States,  respectively,  but  in  Ar- 
kansas there  is  this  proviso — that  the  parties  must  actually 
have  resided  in  the  State  or  county  where  the  marriage  was 
contracted,  and  in  Colorado  it  is  further  provided  that  neither 
polygamy  nor  bigamy  shall  be  allowed  in  the  State.  In  Dela- 
ware it  is  provided  that,  if  parties  to  any  marriage  prohib- 
ited for  consanguinity  or  affinity  or  for  miscegenation,  shall 
cohabit  as  man  and  wife,  then  they  shall  be  punished  as  for  a 
misdemeanpr.  In  Georgia  it  is  enacted  that  all  marriages, 
solemnized  in  another  State  by  parties  intending  at  that  time 
to  reside  in  Georgia,  shall  have  the  same  legal  consequences 
and  effect  as  if  celebrated  in  Georgia,  and  that  parties  can- 
not evade  the  Georgia  laws  by  marriage  in  another  State.  In 
Virginia  no  validity  is  given  to  incestuous  or  bigamous  mar- 
riages or  those  void  for  miscegenation  by  their  being  entered 
into  outside  the  State  to  evade  the  local  law.  In  Mississippi 
marriages  which  are  void  for  miscegenation  acquire  no  valid- 


66  MAREIAGE  AND  DIVORCE. 

ity  by  parties  being  married  outside  the  State  to  avoid  the 
local  law.  The  same  rule  is  observed  in  North  Carolina  by 
decision.  In  Maine  and  Massachusetts,  marriages  are  void, 
and  in  West  Virginia  they  are  voidable,  if  citizens  of  those 
States,  intending  to  return,  go  into  another  State  and  are 
married  with  the  design  to  evade  the  law  against  bigamous  or 
incestuous  marriages  or  against  a  marriage  with  an  idiot  or 
a  lunatic,  and  afterward  return  to  the  State  of  their  domicil. 

FORM  OF  CEREMONY. 

In  New  York  no  license  nor  ceremony  is  necessary,  except 
that  the  parties  shall  declare  in  presence  of  witnesses  that  they 
take  each  other  as  husband  and  wife,  but  a  ceremony  may  be 
had.  In  Arizona  all  persons  who  live  together  as  husband 
and  wife  for  one  year  shall  be  considered  as  lawfully  married. 
In  New  Hampshire  parties  cohabiting  and  acknowledging 
each  other  as  husband  and  wife  and  generally  reputed  as 
such  for  three  years,  or  until  the  death  of  one,  shall  be  deemed 
as  legally  married.  In  Dakota  and  California  parties  mar- 
ried without  a  ceremony  must  make  a  joint  declaration  of 
marriage  setting  forth  the  names,  ages  and  residences  of  the 
parties,  the  fact  of  marriage,  the  date,  and  that  they  are  mar- 
ried. Form  is  not  material,  and  it  must  be  acknowledged  and 
recorded  like  a  deed  of  land.  Quakers  may  everywhere  be 
married  according  to  the  form  incident  to  their  society. 

In  California  and  Idaho  the  person  performing  the  mar- 
riage ceremony  must  have  personal  knowledge  of,  or  ascertain 
beforehand,  the  names,  residences  and  identity  of  the  parties, 
their  legal  right  to  marry  and  that  parental  consent  is  obtained 
if  needful ;  in  Dakota  the  officer  must  ascertain  the  same 
and  that  they  are  of  legal  age,  also  the  names  and  residences 
of  witnesses.  In  New  York,  Wisconsin,  Minnesota  and  New 
Mexico  the  officer  must  ascertain  if  the  parties  are  legally 
competent  to  marry.  In  case  of  a  minor  in  Ohio  the  officer 
must  either  have  a  license,  or  ascertain  that  parental  consent 
is  obtained  and  that  the  banns  have  been  published.  In  New 
York  and  Dakota  one  witness  at  least  is  required ;  in  Khode 


MARRIAGE.  67 

Island,  Oregon,  Washington,  Nevada,  Wisconsin,  Nebraska, 
Idaho,  Wyoming,  Montana,  Minnesota  and  Michigan,  two  wit- 
nesses are  required,  and  in  Louisiana  three  witnesses.  When 
the  parties  dispense  with  a  ceremony,  as  they  may,  two  wit- 
nesses must  be  had.  No  other  State  makes  a  requirement  for 
witnesses.  In  New  York,  Arkansas  and  Mississippi,  if  a  cere- 
monial marriage  is  had,  it  should  be  according  to  the  form  and 
custom  of  the  church  to  which  he  belongs.  In  North  Carolina 
the  consent  of  the  parties  presently  to  take  each  other  as 
husband  and  wife,  freely,  seriously  and  plainly  expressed  by 
each  in  presence  of  the  officer,  and  the  declaration  by  him 
that  they  are  husband  and  wife.  In  Pennsylvania,  Michigan, 
Minnesota,  Dakota,  California,  Idaho,  Nebraska,  Nevada,  Ore- 
gon, Tennessee,  Washington,  Wisconsin  and  Wyoming  no  ex- 
press form  is  required  except  that  the  parties  shall  respectively 
declare  in  presence  of  the  person  officiating,  and  of  witnesses 
when  they  are  required,  that  they  take  each  other  as  husband 
and  wife.  In  Indiana  no  marriage  shall  be  invalid  for  want 
of  proper  formalities  if  the  parties  believed  it  correct  at  the 
time ;  same  in  California,  Dakota  and  Idaho.  In  Maine,  New 
Hampshire  and  Massachusetts  no  marriage  shall  be  invalid 
by  any  omission  of  the  notice  to  marry.  In  Michigan,  Ore- 
gon, Utah,  Massachusetts,  Delaware,  Wyoming,  Georgia, 
Minnesota,  Vermont,  Maine,  New  Hampshire,  Wisconsin, 
Virginia,  Idaho,  Montana,  Kentucky,  West  Virginia,  Nevada, 
Nebraska,  Washington,  Indiana,  it  is  provided  in  general 
terms  that  no  marriage  entered  into  in  good  faith  shall  be  af- 
fected by  reason  of  non- authorization  of  officer  if  the  parties 
believe  themselves  to  be  lawfully  married. 

In  New  York  and  Dakota,  Indians  may  lawfully  marry 
according  to  their  customs. 

Legal  fees  vary  from  one  dollar  to  five  dollars ;  it  is  cus- 
tomary (but  a  foolish  custom)  to  pay  more. 

The  Shakers  practiced  celibacy  strictly  and  honestly ;  the 
Zoarites  followed  the  creeds  of  the  Apostolic  Essenes ;  and 
used  marriage  as  a  strict  utility  to  perpetuate  the  race,  their 


68  MARRIAGE  AND  DIVORCE. 

canon  being  thus :  "All  intercourse  of  the  sexes,  except 
what  is  necessary  to  the  perpetuation  of  the  species,  we  hold 
to  be  sinful  and  contrary  to  the  order  and  command  of  God. 
Complete  virginity  or  entire  cessation  of  sexual  commerce  is 
more  commendable  than  marriage."  Yet  tliey  seem  to  have 
married,  for  one  of  their  canons  provides  that  -'our  marriages 
are  contracted  by  mutual  consent  and  before  witnesses.  They 
are  then  notified  to  the  political  authority,  and  we  reject  all 
intervention  of  priests  or  preachers. " 

The  Oneida  community,  at  Oneida,  New  York  (now  dis- 
banded) adopted  promiscuity,  and  sexual  alliances  were  tem- 
porary, i.  e.,  for  one  single  night.  The  Quaker  system  of  celi- 
bacy or  the  practices  of  the  Essenes  were  not  inharmonious 
with  the  law,  but  the  vulgar  practices  of  the  Oneida  com- 
munity were ;  they  were  obliged  to  yield  to  the  pressure  of 
popular  opinion  at  last  and  disband. 

And  thus  it  will  appear  that  no  principle  but  the  monogamic 
will  be  suffered  to  prevail  in  our  country,  although  the  loose 
rein  given  to  many  alliances  by  the  necessities  of  divorce 
law  makes  possible  many  marital  partners.  Four  is  not  un- 
common in  swift  succession,and  I  have  known  of  one  person  who 
had  eight.  As  to  property  rights  depending  upon  the  law  of 
domicil  and  conflicting  domicils  in  cases  of  removal,  the  law 
(in  absence  of  statute)  has  been  thus  summarized :  Where 
there  is  a  marriage  between  parties  in  a  foreign  country,  and 
an  express  contract  respecting  their  rights  and  property,  pres- 
ent and  future,  that  as  a  matter  of  contract  will  be  held  equally 
valid  everywhere,  unless  under  the  circumstances  it  stands 
prohibited  by  the  laws  of  the  country  where  it  is  sought  to  be 
enforced.  It  will  act  directly  on  movabb  property  everywhere. 
But  as  to  immovable  property  in  a  foreign  territory  it  will 
at  most,  confer  only  a  right  of  action,  to  be  enforced  accord- 
ing to  the  jurisprudence  rei  sitae. 

Where  such  an  express  contract  applies  in  terms  or  intent 
only  to  personal  property,  and  there  is  a  change  of  domicil, 


MAKEIAGE.  69 

the  law  of  the  actual  domicil  will  govern  the  rights  of  the 
parties  as  to  all  future  acquisitions. 

Where  there  is  no  express  contract,  the  law  of  the  matri- 
monial domicil  will  govern  as  to  all  the  rights  of  the  parties  to 
their  present  property  in  that  place  and  as  to  all  personal  pro- 
perty everywhere,  on  the  principle  that  movables  have  no  situs, 
or  rather  that  they  accompany  the  persons  everywhere.  As  to 
immovable  property,  the  law  rei  sitae  will  prevail. 

Where  there  is  no  change  of  domicil,  the  same  rule  will 
apply  to  future  acquisitions  as  to  present  property.  But 
where  there  is  a  change  of  domicil  the  law  of  the  actual  dom- 
icil, and  not  of  the  matrimonial  domicil,  will  govern  as  to  all 
future  acquisitions  of  movable  property,  and  as  to  all  immov- 
able property,  the  law  rei  sitae. 

And  here  also,  as  in  cases  of  express  contract,  the  excep- 
tion is  to  be  understood,  that  the  laws  of  the  place  where  the 
rights  are  sought  to  be  enforced  do  not  prohibit  such  arrange- 
ments. For  if  they  do  as  every  nation  has  a  right  to,  prescribe 
rules  for  the  government  of  all  persons  and  property  within 
its  own  territorial  limits,  its  own  law  in  a  case  of  conflict,  ought 
to  prevail. 

Although  in  a  general  sense,  the  law  of  matrimonial  dom- 
icil is  to  govern  in  relation  to  the  incidents  and  effects  of 
marriage,  yet  this  doctrine  must  be  received  with  many  quali- 
fications and  exceptions.  No  other  nation  will  recognize  such 
incidents  or  effects  when  they  are  incompatible  with  its  own 
policy,  or  injurious  to  its  own  interests.  A  marriage  in  France 
or  Prussia  may  be  dissolved  for  incompatibility  of  temper,  but 
no  divorce  would  be  granted  from  such  a  marriage  for  such 
a  cause  in  England,  Scotland  or  America.  *  *  *  The  doc- 
trine of  tacit  consent  to  regulate  the  rights  and  duties  of  ma- 
trimony in  cases  where  there  is  no  express  contract  according 
to  the  law  of  the  place  where  the  marriage  has  been  celebrated, 
is  questionable  in  itself,  and  even  if  admitted,  must  be  liable 
to  many  qualifications  and  restrictions.  We  have  seen  ihat 
it  has  been  much  doubted  in  Louisiana,  and  the  Scottish 


•fa  MAKRIAGE  AND  DIVORCE. 

courts  have   utterly  refused  to  allow  the  doctrine  of  such  a 
tacit  contract  to  regulate  the  right  of  divorce.  1 

Of  course  the  statutes  of  the   most  of  the   States   made 
radical  changes  in  the  law. 

1  Story's  Conf .  Laws,  Sees.  184  to  190. 


m. 

DIVOECE. 


He  counsels  a  divorce:  a  loss  of  her, 

That  like  a  jewel  has  hung  twenty  years 

About  his  neck,  yet  never  lost  her  lustre; 

Of  her  that  loves  him  with  that  excellence 

That  angels  love  good  men  with.  — ShaJcs. 

Sir,  call  to  mind 

That  I  have  been  your  wife  in  this  obedience 
Upward  of  twenty  years,  and  have  been  bless'd 
With  many  children  by  you.     If,  in  the  course 
And  process  of  this  time  you  can  report, 
And  prove  it,  too,  against  mine  honor  aught, 
My  bond  to  wedlock,  or  my  love  and  duty, 
Against  your  sacred  person,  in  God's  name 
Turn  me  away;  and  let  the  foul'st  contempt 
Shut  door  upon  me.  — Shaks. 

The  reason  why  so  few  marriages  are  happy  is  because  young  la- 
dies spend  their  time  in  making  nets,  not  in  making  cages. 

— Dean  Swift. 

For  what  is  wedlock  forced  but  a  hell, 

An  age  of  discord  and  continual  strife? 

Whereas  the  contrary  bringest  bliss, 

And  is  a  pattern  of  celestial  peace.  — Shaks. 

Divorce  is  an  outbursting,  a  liberation,  a  step  to  something  better. 

— A.  J.  Davis. 

Divorce  is  a  popular  generic  term  to  indicate  in  general, 
all  methods  of  judicial  declaration  that  a  marriage  is  at  an 
end,  but  it  is  also  a  specific  term  to  designate  but  one  mode 
of  such  termination,  the  subject  being  divisible  into  the  fol- 
lowing parts,  viz. : 


72  MARRIAGE  AND  DIVORCE. 

1.  Judicial     declaration    of    nullity   of    marriage   ipso 
facto. 

2.  Judicial  decree  of  a  nullity  of    marriage  by  force  of 
a  decree. 

3.  Divorce  a  vinculo  matrimonii  (from  the  bonds  of  mat- 
rimony). 

4.  Divorce  a  memo,  et  thoro  (from  bed  and  board). 
Then  there   may   be   a  suit  for  jactitation  of  marriage, 

which  is  an  inverse  action  brought  to  overthrow  a  false  pre- 
tension of  marriage ;  and  there  may  be  a  suit  for  separate 
maintenance  or  alimony,  dissevered  entirely  from  suit  for 
nullity  or  divorce. 

Under  the  old  Jewish  dispensation:  "When  a  man  hath 
taken  a  wife  and  married  her,  and  it  came  to  pass  that  she 
found  no  favor  in  his  eyes,  because  he  hath  found  some  un- 
cleanness  in  her,  then  let  him  write  her  a  bill  of  divorce- 
ment, and  give  it  in  her  hand,  and  send  her  out  of  his 
house ;  and  when  she  is  departed  out  of  his  house,  she  may 
go  and  be  another  man's  wife;  and  if  the  latter  husband 
hate  her,  and  write  her  a  bill  of  divorcement,  and  giveth  it  into 
her  hand,  and  sendeth  her  out  of  his  house,  *  *  *  her 
former  husband  *  *  *  may  not  take  her  again  to  be  his 
wife;"1  but  the  Savior's  commentary  on  that  law  was:  That 
whosoever  shall  put  away  his  wife  saving  for  the  cause  of 
fornication  causeth  her  to  commit  adultery,  and  whosoever 
shall  marry  her  that  is  divorced  committeth  adultery.2 

Yet,  under  the  Eoman  law,  marriage  might  be  dissolved 
at  the  option  of  both  parties,3  There  were  two  kinds :  one 
called  repudium  and  the  other  divortium :  but  Justinian,  in  his 
pandects,  enacted  that  a  husband  might  divorce  his  wife  for 
specific  causes,  and  so  might  the  wife  the  husband.4 

In  Kome,  divorce  (divortium),  or  a  right  to  dissolve  the 
marriage,  was  by  the  law  of  Eomulus  permitted  to  the  hus- 
"band  but  not  to  the  wife,  as  by  the  Jewish  law ;  not,  how- 
ever, without  a  just  cause.  A  groundless  or  unjust  cause 

1  Deut.  xxiv.  1-4.    2  Matt.  v.  32 ;  Mark  x.  4.    3  Bojesen,  p.  534.    *  Jus.  Pand. 


DIVORCE.  73 

was  punished  with  the  loss  of  effects,  of  which  one-half  fell 
to  the  wife,  and  the  other  was  consecrated  to  Ceres. 

A  man  might  divorce  his  wife  if  she  had  violated  the  con- 
jugal faith,  used  poison  to  destroy  his  offspring,  or  brought 
upon  him  supposititious  children,  if  she  had  counterfeited 
his  private  keys,  or  even  drank  wine  without  his  knowledge. 
In  these  cases  the  husband  judged,  together  with  his  wife's 
relatives.  This  law  is  supposed  to  have  been  copied  into  the 
twelve  tables.  Although  the  law  allowed  husbands  the  lib- 
erty of  divorce,  there  was  no  instance  of  its  being  exer- 
cised for  about  520  years.  Sp.  Carvelius  Ruga  was  the  first 
who  divorced  his  wife,  although  fond  of  her,  because  she  had 
no  children,  on  account  of  the  oath  he  had  been  forced  to 
take  by  the  censors,  in  common  with  the  other  citizens,  that 
he  would  marry  to  have  children. 

Afterward  divorces  became  very  frequent,  not  only  for 
important  reasons,  but  often  on  the  most  frivolous  pretexts. 
Caesar,  when  he  divorced  Pompeia,  the  niece  of  Sulla,  be- 
cause Claudius  had  got  admission  to  his  house  in  the  garb  of 
a  music  girl,  at  the  celebration  of  the  sacred  rites  of  the 
Bona  Dea,  declared  that  he  did  not  believe  anything  that 
was  said  against  her,  but  that  he  could  not  live  with  a  wife 
who  had  once  been  suspected. 

If  a  wife  was  guilty  of  infidelity,  she  forfeited  her  dowry, 
but  if  the  divorce  was  made  without  any  fault  of  her's  the 
dowry  was  restored  to  her.  When  the  separation  was  vol- 
untary on  both  sides,  she  sometimes  also  retained  the  nup- 
tial presents  of  her  husband. 

In  the  latter  ages  of  the  Eepublic  the  same  liberty  of 
divorce  was  exercised  by  the  women  as  by  the  men.  Some 
think  that  right  was  granted  to  them  by  the  law  of  the 
twelve  tables,  in  imitation  of  the  Athenians.  This,  however, 
seems  not  to  have  been  the  case,  for  it  appears  they  did  not 
enjoy  it  even  in  the  time  of  Plautus;  only  if  a  man  was 
absent  for  a  certain  time,  his  wife  seems  to  have  been  at 
liberty  to  marry  another.  Afterward  some  women  deserted 


74  .          MAKKIAGE  AND  DIVOBCE. 

their  husbands  so  frequently  and  with  so  little  shame  that 
Seneca  says  they  reckoned  their  years,  not  from  the  number 
of  consuls,  but  of  husbands.  So  Juvenal :  and  often  with- 
out any  just  cause.  But  a  freedwoman,  if  married  to  her 
patron,  was  not  permitted  to  divorce  him. 

Augustus  is  said  to  have  restricted  this  license  of  bona 
gratia  divorces,  as  they  are  called,  and  likewise  Domitian. 
They  still,  however,  prevailed,  though  the  women  who  made 
them,  were  by  no  means  respectable.  A  divorce  anciently 
was  made  with  different  ceremonies,  according  to  the  manner 
in  which  the  marriage  had  been  celebrated.  A  marriage 
contracted  by  confarreatio  was  dissolved  by  a  sacrifice 
called  dijfarreatio,  which  was  still  in  use  in  the  time  of  Plu- 
tarch, when  a  separation  took  place  betwixt  the  flamen  of 
Jupiter  and  his  wife.  A  marriage  contracted  by  coemptio  was 
dissolved  by  a  kind  of  release  called  remancipatio.  In  this 
manner  Cato  is  supposed  to  have  voluntarily  given  away 
his  wife  Marcia,  to  Hortensius,  and  Tiberius  Nero  his  wife 
Livia,  to  Augustus,  even  when  big  with  child. 

In  later  times  a  divorce  was  made  with  fewer  ceremonies. 
In  presence  of  seven  witnesses  the  marriage  contract  was 
torn,  the  keys  were  taken  from  the  wife,  then  certain  words 
were  pronounced  by  a  f reedman,  or  by  the  husband  himself : 
"Res  tuas  tibi  habe  vel  eto.  Tuas  res  tibi  agito.  Exi,  exi,  ocyus. 
Vade  fores,  I  fores  mulier,  cede  domo." 

If  the  husband  was  absent,  he  sent  his  wife  a  bill  of  di- 
vorce, on  which  similar  words  were  inscribed.  This  was 
called  matrimonii  renunciatio. 

If  the  divorce  was  made  without  the  fault  of  the  wife  her 
whole  portion  was  restored  to  her,  sometimes  all  at  once,  but 
usually  by  three  different  payments. 

There  was  sometimes  an  action  to  determine  by  whose 
fault  the  divorce  was  made.  When  the  divorce  was  made  by 
the  wife,  she  said  :  "  Valeas  tibi  habeas  tuas  res,  reddas  meas." 

Divorces  were  recorded  in  the  public  registers,  as  mar- 
riages, births  and  funerals. 


DIVORCE.  75 

The  Turks  have  three  several  kinds.  The  laws  of  the 
Pagans,  Mahommedans,  Jews,  and  Greeks  admitted  of  only  one 
kind  of  divorce.  Under  the  Mosaic  dispensation,  and  during 
the  Jewish  economy,  this  continued  to  be  regarded  as  a  cause 
pertaining  to  the  civil  authority,  and,  upon  the  separation, 
the  husband  gave  the  wife  a  writing  to  this  effect :  "  I  promise 
that,  hereafter,  I  will  lay  no  claim  to  thee." 

The  principle  of  equality  between  man  and  woman 
appeared  under  the  law  of  Solon  in  Athens,  Herod  in  Judea, 
and  Domitian  at  Eome,  by  the  correlative  right  of  a  wife  to 
divorce  her  husband.  The  fathers  of  the  Church  had  great 
political  as  well  as  sacerdotal  authority,  but  weakened  their 
efforts  on  the  subject  of  divorce  by  a  division  of  their 
counsels,  St.  Augustine  opposing,  and  St.  Epiphanius  and 
St.  Ambrose  allowing  it.  Pope  Nicholas  I.  forced  Lothair  I. 
to  take  back  Teutbergia,  his  wife,  whom  he  had  divorced. 
The  withdrawal  of  the  Eastern  Catholics  and  their  constitu- 
tion of  the  Greek  Church  changed  the  policy  of  the  recu- 
sants, who  authorized  divorce  in  limited  cases:  so  did  the 
Lutherans  after  the  Beformation.  In  1792  a  divorce  law 
was  enacted  in  France  which  allowed  of  a  divorce  by  mutual 
consent,  and  likewise  for  incompatibility  of  temper. 

Among  the  Athenians  the  suit  for  divorce  was  conducted 
very  similar  to  our  bills  in  chancery.  The  suit  was  brought 
before  the  judge  by  petition,  and,  if  the  wife  was  petitioner, 
she  was  bound  to  appear  in  person.  The  freedom  of  divorces 
amongst  the  Eomans,  as  re-established  by  the  novels  of 
Justinian,  continued  down  to  the  ninth  or  tenth  century, 
when  the  Church  assumed  a  supremacy  over  it,  and  for  a  time 
abrogated  all  divorces.  The  Latin  Catholic  Church,  holding 
marriage  as  a  sacrament,  disallowed  divorces  altogether,  and 
this  continued  to  be  the  law  of  France  down  to  the  time  of 
the  French  revolution.  The  Greek  and  the  Protestant 
Churches  held  it  differently,  and  when  those  religions  prevailed, 
divorces  continued  to  be  allowed.  The  Code  Napoleon  allows 
divorces  in  cases  submitted  to  the  judicial  tribunal  for  num- 


76  MARRIAGE  AND  DIVORCE. 

erous  causes,  one  of  which  is  the  mutual  consent  of  the 
parties.  The  laws  of  most  of  the  provinces  of  the  German 
Empire  allow  but  two  causes  of  divorce,  which  are  to  be 
ascertained  by  the  judiciary. 


"Divorce  laws  in  Egypt  are  even  worse  than  those  of 
New  York  and  Sioux  Falls,  S.  D.,"  said  J.  N.  Farnmore,  of 
London,  Eng.  "A  wife  may  be  divorced  twice  and  return  to 
her  husband  in  Egypt,  but  if  he  divorced  her  a  third  time 
and,  with  a  triple  divorce  declared,  send  her  away,  he  cannot 
live  with  her  again  until  she  has  been  one  month  married  to 
another  man.  After  the  third  divorce  the  husband  must  pay 
the  part  of  the  dower  which  was  set  aside  for  the  wife  before 
marriage,  and  he  must  support  her  out  of  his  house  during 
the  three  months  in  which  she  may  not  marry  again.  If  the 
wife  be  separated  from  the  man  and  not  divorced,  she  receives 
a  weekly  allowance  from  him. 

"A  divorced  woman  may,  after  divorce,  retain  her  son, 
under  two  years  of  age,  and  custom  gives  the  child  to  its 
mother  until  it  is  seven  years  old;  then  the  father  must 
claim  his  son.  When  a  man  forfeits  an  engagement  to 
marry  he  must  pay  the  woman  half  her  dower,  and  she  is  free 
to  marry  at  once.  When  a  wife  is  disobedient,  her  husband 
may  beat  her ;  if  she  still  persists  in  disobedience  he  may 
take  her,  with  two  witnesses,  not  his  relatives,  to  the  court, 
and  declare  against  her,  and  if  she  does  not  promise  to  be 
obedient  thereafter  he  is  not  compelled  to  feed,  lodge,  or 
clothe  her,  but  need  not  divorce  her.  If  she  promises 
obedience  then  he  must  at  once  divorce  her  or  take  her  home. 
If  the  women  of  the  same  harem,  or  of  different  ones,  quarrel, 
and  are  complained  of  to  the  court,  their  husbands  are 
punished  by  the  court ;  but  it  is  certain  that  the  punishment 
inflicted  on  the  husbands  does  not  save  the  poor  women  from 
chastisement.  The  lord  of  the  harem  has  his  turn  after- 
ward. The  husband  divorces  the  wife,  but  the  wife  cannot 
divorce  the  husband." 

In  England,  parliament  granted  divorces  a  vinculo 
occasionally,  and  the  ecclesiastical  court  had  cognizances  of 
divorces  a  mensa  et  thoro.  In  1858  an  act  of  parliament 


DIVORCE.  77 

was  enacted,  providing  a  "court  for  divorce  and  matrimonial 
causes,"  which  transferred  the  entire  jurisdiction  to  the 
judiciary,  and  made  this  sweeping  enactment:  "No  decree 
shall  hereafter  be  made  for  a  divorce  a  wnsa  et  thoro,  but 
in  all  cases  in  which  a  decree  for  divorce  a  mensa  et  thoro 
might  now  be  pronounced  the  court  may  pronounce  a 
decree  for  a  judicial  separation,  which  shall  have  the  same 
force  and  the  same  consequence  as  a  divorce  a  mensa  et 
thoro  now  has." 

Nor  was  there  any  divorce,  save  for  adultery,  prior 
to  the  divorce  act  of  1858.  So  likewise  in  Scotland  prior 
to  the  conjugal  rights  act  of  1861. 

Within  the  past  few  decades  there  has  been  a  most  aston- 
ishing increase  in  the  demand  for,  and  allowance  of,  divorces 
in  all  civilized  countries,  but  no  greater  increase  of  that  prac- 
tice than  there  has  been  in  other  institutions  of  progress,  as 
wealth,  new  mechanical  and  industrial  methods,  modes  of 
life,  legal  conditions,  etc. 

Moralists  quite  properly  express  great  solicitude  at  the  ele- 
ments of  danger  and  disintegrating  tendencies  of  the  abnor- 
mal increase  of  divorce,  but  in  every  case  I  have  noticed  the 
effect  is  substituted  for  the  cause,  and  the  axe  of  reform  is 
attempted  to  be  laid  to  the  innocent  branches  rather  than  to 
the  guilty  root  of  the  tree.  As  well  might  the  legislator  at- 
tempt to  keep  scamps  out  of  jail  or  the  penitentiary,  with- 
out more,  as  to  inhibit  the  procurement  of  divorce  without 
more,  for  as  long  as  there  is  a  pre-existing  cause  for  peniten- 
tiary convictions,  society  must  incarcerate  them  there,  or  do 
much  worse;  and,  so  long  as  these  authoritative  reasons 
therefor  exist  in  society,  divorce  will  ensue  as  a  superven- 
ient need,  else  worse  evils  even  than  divorce  will  be  the 
necessary  sequel. 

I  admit  an  urgent  need  for  reform,  but  I  think  the  re- 
form should  commence  at  the  beginning,  and  not  at  the  end 
— at  the  fountain,  and  not  at  one  of  the  rills  that  flow  there- 
from. 


78  MAKRIAGE  AND  DIVORCE. 

Nor  would  I  accede  to  a  change  in  all  original  causes  of 
divorce,  for  I  consider  that  some  of  the  fruitful  causes  of 
divorce  are  of  positive  good,  but  the  immoral  causes  I  would 
join  in  a  crusade  against,  of  course,  inasmuch  as  they  should 
be  extirpated  on  all  accounts,  as  well  as  by  reason  of  their 
being  germinating  beds  for  divorce.  One  of  the  most  potent 
causes  of  divorce  is  the  enfranchisement  of  women.  In  the 
good  old  days  the  monarch,  man,  was,  in  legal  contempla- 
tion, the  whole  family.  The  individuality  of  the  wife  was 
totally  submerged  and  swallowed  up  in  that  of  the  husband. 
If  the  condition  was  represented  by  the  two  digits,  10,  she 
was  the  cipher,  and  he  both  of  them.  He  was  ten  and  she 
naught.  And  this  was  so  even  in  case  of  Felicia  Hemans, 
George  Eliot  and  Madame  Eoland.  He  absorbed  her  property, 
but  she  did  not  absorb  his.  He  could  "lick"  her  with  "a 
stick  not  larger  than  his  thumb,"  and  it  would  not  be  assault 
and  battery,  but  she  could  not  reciprocate.  Of  course  in 
those  good  old  days  a  divorce  for  extreme  and  repeated 
cruelty  would  not  lie.  It  was  the  custom  for  all  men  to  get 
drunk :  so  a  divorce  for  habitual  drunkenness  could  not  lie 
for  that  cause,  either.  A  woman  can  now  transact  business 
for  herself  and  own  her  own  earnings.  By  attrition  with  the 
practical  world  she  learns  to  respect  herself  and  the  gauge  of 
her  marital  rights.  Hidden  causes  for  divorce  are  no  longer 
suppressed  in  unavailing  sobs  and  wails  from  breken  hearts 
and  crushed  affections,  but  are  dragged  to  the  light  and 
exposed,  as  they  should  be.  Again,  the  spirit  of  the  age 
demands  that  men  shall  live  very  much  away  from  their 
families.  The  vast  army  of  railway  train-men,  of  commer- 
cial travelers,  and  many  classes  of  wage-workers  must  spend 
much  time  absent  from  their  families.  The  spirit  of  the  age 
demands  it — the  present  modes  of  business  demand  it.  No 
one,  probably,  would  desire  to  roll  backward  the  wheels  of 
progress  to  the  methods  of  primeval  days.  These  things  tend 
to  induce  immorality.  It  is  inevitable.  A  wife  finds  her 
traveling  husband,  mayhap  one  who  is  absent  from  her  pro- 


DIVORCE.  79 

tection  for  nine  months  in  the  year,  or  four  nights  out  of  the 
week,  eating  of  the  forbidden  fruit,  or  possibly  she  rnay  do  so. 
Will  any  casuist  decry  the  right  of  the  innocent  party  to 
secure  a  divorce  ?  In  such  case,  which  is  very  common,  all 
will  concur  that  the  cause,  the  flagitious  conduct,  is  wrong, 
but  that  the  effect,  viz.,  the  supervenient  divorce,  is  right,  and 
that  in  such  case,  the  cause,  and  not  the  effect,  should  be 
removed.  In  the  olden  time  ninety  per  cent,  of  the  people 
lived  on  farmsteads.  All  had  an  even,  unexcited  life.  The 
wife  and  husband  were  together  all  the  time,  except  during 
the  time  of  necessary  labors  in  the  field,  and  causes  for 
divorce  were  then  reduced  to  the  minimum,  But  to  restore 
those  halcyon  moral  days  means  to  bring  retrogression  to  our 
industrial  life,  to  obliterate  railways,  the  telegraph,  the  power 
press,  the  ocean  steamer,  the  steam  engine  and  automatic 
machinery.  Does  society  wish  that?  Probably  not,  but 
such  vehicles  of  progress  have  a  fruitful  supply  of  causes  for 
divorce  hidden  in  the  load. 

The  throwing  open  of  all  avocations  to  women  is  a  fruit- 
ful cause  of  divorce.  So  long  as  girls  and  women  were  con- 
fined to  the  saered  precincts  of  home,  they  were  compara- 
atively  safe  from  any  attacks,  mental  or  moral,  which  were 
the  ultimate  causes  of  divorce,  but  such  knowledge  of  the 
world  and  its  affairs  as  is  brought  by  attrition  breeds  causes  for 
discontent  and  even  more  proximate  causes.  But  no  one  could 
wish  the  restrictions  upon  women's  sphere  of  labor  to  be  cur- 
tailed. And  thus  it  will  appear  that,  not  divorce,  but  the 
causes  underlying  divorce,  constitute  the  proper  subject  of 
condemnation. 

The  abnegation  of  homes  and  the  propensity  to  live  in 
boarding-houses,  the  tendency  of  women  to  idleness,  the  ad- 
vent of  excellent  artificial  light  and  the  keeping  of  late 
hours  in  consequence,  are  all  suggestive  of  artificiality  in 
living  which  breeds  causes  for  divorce,  but  does  not  breed 
divorce  itself.  What,  then,  should  be  destroyed  ?  Not  the 
divorce  system,  surely,  but  the  causes  of  divorce.  All  right- 


80  MAKEIAGE  AND  DIVOKCE. 

minded  persons  will,  or  ought  to,  concede  that  the  modern  and 
society  dramas,  the  counterfeit  nude  shows,  Zola's  novels, 
"personals,"  and  nastiness  in  our  public  press  should  be 
repressed  ivith  a  strong  hand,  but  no  one  would  concur  in 
suppressing  the  daily  paper  or  the  lightning  express  train,  or 
the  "hello"  girl  in  the  telephone  office,  or  the  fair  typewriter, 
or  the  drummer.  And  thus  you  see  that  even  agencies  which 
produce  causes  for  divorce  must  be  kept  up  by  the  force  and 
behest  of  society. 

During  the  past  twenty  years  328,000  divorces  have  been 
granted  in  the  courts  of  the  United  States,  according  to  the 
New  York  Sun.  Appalling,  isn't  it  ?  and  might  furnish  good 
ground  for  the  pessimistic  fears  that  family  perpetuity  is  in 
danger,  only  that  while  the  number  of  golden  weddings 
almost  equals  the  number  of  divorces,  the  number  of  silver 
weddings  exceeds  the  divorces  considerably. 

According  to  statistics  there  is  no  calling  or  vocation 
which  human  beings  enter  into  which  shows  so  small  a  per- 
centage of  total  failures  as  marriage,  one  per  cent,  being  the 
ratio. 

A  little  less  study  of  the  divorce  statistics,  and  a  little 
more  investigation  of  improper  marriages,  might  lower  the 
record  still  more. 

The  first  case  of  divorce  which  arose  in  my  practice 
illustrates  the  subject.  A  "California"  widow  applied  to  me. 
I  ascertained  that  although  her  husband  had  been  in  the  gold 
diggings,  and  absent  for  more  than  two  years,  yet  he  regularly 
sent  home  the  sum  of  his  earnings,  and  I  tried  to  convince 
her  of  the  uselessness  of  her  attempt ; still,  to  get  rid  of  her,  I 
filed  a  bill  setting  up  desertion ;  when  court  arrived,  I  offered 
the  proofs,  and  asked  the  judge  to  hold  the  case  over :  and 
that  evening,  in  our  room,  I  informed  him  that  my  client  was 
officiating  nominally  as  housekeeper  for  a  widower,  but  was 
probably  allied  by  a  closer  tie,  and  that,  in  my  judgment,  if 
she  got  her  coveted  divorce,  they  would  inter-marry,  otherwise 
the  irregular  union  would  continue.  In  a  few  days  the  judge 


DIVORCE.  81 

decided  the  case.  Said  he :  "This  is  one  of  the  inevitable 
cases  of  a  "California"  widow;  they  come  up  constantly,  al- 
though never  successful,  which  shows  the  pressure  in  that 
direction.  I  now  announce  a  new  rule  on  this  circuit  :  when- 
ever a  husband  remains  absent  from  his  family  for  two  years 
I  will  release  her  on  her  application,  even  though  he  does 
send  her,  and  she  does  receive  from  him,  money.  I  am  satis- 
fied that  the  interests  of  society  demand  it,  and  such  shall  be 
the  rule  hereafter."  A  mere  moralist  or  theorist  would  disap- 
prove of  this,  but  the  judge  who  rendered  this  decision  was 
the  ablest  common-sense  judge  I  ever  knew — it  was  David 
Davis,  afterward  a  Supreme  Judge  and  U.  S.  Senator. 
He  spoke  from  a  large  experience,  and  he  could  have  had  no 
ulterior  object  in  his  action;  it  shows  the  difference  between 
the  bird's-eye  view  of  society,  which  an  abstract  theorist  takes, 
from  the  concrete  and  practical  view.  And  where  there  is  a 
legitimate  cause  for  divorce  or  nullity,  it  should  be  granted, 
even  though  the  list  is  large  and  growing  alarmingly  larger. 
If  a  husband  or  wife  is  unfaithful  to  his  or  her  marriage  vows, 
the  innocent  one  ought,  in  mercy  and  decency,  to  be  released ; 
if  a  husband  beats  his  wife  unmercifully,  she  should  be  dis- 
enthralled from  such  a  monster  ;if  a  husband,  being  of  ability, 
allows  his  wife  to  suffer  for  the  necessaries  of  life,  she  should 
be  suffered  to  be  free  from  him,  and  similar  suggestions  may 
be  made  of  other  causes,  and,  really,  as  I  view  it,  it  is  only  by 
metonymy  that  any  satisfactory  reason  can  be  urged  against 
the  institution,  so  far  as  such  meritorious  cases  are  concerned. 
But  the  abuse  of  the  system  is  indeed  reprehensible,  as  also  is 
the  conflict  in  the  laws,  and  their  administration.  Because 
divorce  is  so  common,  parties  are  lax  and  indifferent  about 
their  matrimonial  engagements  and  enterprises,  deeming  the 
escape  therefrom  easy,  if  needful,  and  very  many  instances 
occur  where  parties,  for  a  little  acerbity  of  temper  or  trivial  and 
superficial  causes,  are  divorced  in  haste,  only  to  repent  at 
leisure.  Many  instances  occur  where  married  persons  seek  im- 
propei  divorces,  in  order  to  make  an  alliance,  preferable.  I 


82  MARRIAGE  AND  DIVORCE. 

have  in  my  mind  several  instances  in  my  own  practice,  where 
I  have  procured  divorces  for  females  at  the  behest  of  a  wait- 
ing matrimonial  alliance  in  another  quarter,  as  thereafter 
was  disclosed.  Law-makers  should  be  sedulous  to  guard 
against  abuses,  without  impairing  the  proper  uses  of  the 
institution.  But  after  all,  can  the  legislator  change  the 
nature  of  men  and  women  by  legislation — that  is,  and  not 
abridge  their  proper  freedom?  Suppose  that  no  divorced 
person  should  ever  thereafter  be  allowed  to  remarry,  as  sug- 
gested by  Mr.  E.  J.  Phelps  ?  Would  that  be  salutary  ?  Should 
dissatisfied  persons  be  held  in  matrimonial  subjection  by 
the  terrors  of  such  a  law?  Would  not  the  licentiousness 
attendant  on  such  a  remedy  be  worse  than  matters  now  are  ? 
And  if  our  country  was  replete  with  divorced  men  and  women, 
hopelessly  estranged  from  legitimate  sexual  contact,  would 
not  such  condition  be  more  deplorable  than  to  allow  them  an 
opportunity  for  legitimate  satisfaction  ?  So,  in  either  event, 
whether  such  penalty  did  or  did  not  deter  them,  it  seems  to 
me  to  extend,  rather  than  abridge,  the  evils  incident  to  the 
marital  state,  and  the  sexual  problem.  To  try  to  cure  the 
divorce  fever  at  the  surface,  and  leave  the  germ  and  cause 
within — to  apply  a  plaster  to  the  surf  ace  of  a  cancer,  and  leave 
the  cancer  beneath — is  not  good  treatment,  so  neither  is  the 
suppression  of  the  blossom  of  this  great  moral  evil,  while  not 
interfering  with  the  stalk  and  root.  Do  advocates  of  divorce 
reform  try  to  suppress  Zola,  the  younger  Dumas,  Ouida,  and 
such  unsavory  literature  ?  I  recently  have  read  of  an  exception- 
ally nasty  thing  started  on  the  stage  at  Boston,  and  then 
hawked  about  the  rural  districts,  to  crowded  houses,  the 
papers  say.  One  item  is  reported  as  the  bridal  chamber  and 
the  bride  undressing  herself  before  the  audience  and  the 
groom.  I  have  noticed  no  remonstrance  to  this  anywhere.  That 
sort  of  stuff  ought  to  be  suppressed,  and  not  the  effort  of  a 
husband  to  get  released  from  a  giddy  wife,  who  falls  from 
virtue  by  reason  of  the  unnatural  excitements  acquired  at 
witnessing  such  pieces  in  a  moral  city.  Do  the  "divorce"  re- 


DIVORCE.  83 

formers  hope  to  stifle  the  storm  by  arresting  the  spray  of  the 
billowy  waves  ?  They  will  find  that  the  only  way  to  dimmish 
divorce,  and  not  superinduce  worse  ills,  is  to  purify  society, 
and  its  tendencies  and  practices,  and  that  will  also  purify  the 
foully  contaminated  institution  of  divorce.  There  are  grave 
ills  in  the  system,  and  which  should  be  remedied ;  forty -eight 
several  jurisdictions,  all  differing  as  to  causes,  practice,  reme- 
dies, and  length  of  residence,  must  engender  moral  chaos,  and 
is  found  to  do  so.  There  should  be  an  uniformity — uniform- 
ity of  causes,  of  residence,  of  defences,  etc. ;  that  would  be 
a  genuine  and  much  needed  reform,  and  many  causes  of  un- 
authorized and  improper  divorce  would  be  extirpated.  The 
most  constant  customers  of  our  divorce  courts  are  actors, 
actresses,  opera  singers,  etc.,  who,  being  on  the  road  for  ten 
months  in  the  year,  and  usually  having  "no  local  habitation" 
in  fact,  choose  Chicago  for  a  residence,  as  they  lawfully  may, 
inasmuch  as  all  citizens  should  and  are  privileged  to  have  a 
domicil  somewhere;  then  when  they  wish  a  divorce,  it  is  an 
eligible  locality  for  that  purpose. 

People  sometimes  resort  to  Chicago  by  force  of  habit  and 
by  reason  of  the  simplicity  of  the  divorce  law  and  practice 
thereunder,  and  the  further  reasonable  probability  that  they 
migrate  there  for  legitimate  reasons.  It  is  not,  however,  an 
"easy"  jurisdiction;  no  fraudulent  divorce  can  be  granted 
there,  except  upon  the  basis  of  flat  perjury,  and  all  evidence 
is  recorded  and  preserved.  The  judges  are  particular  and 
conscientious,  and  if  a  divorce  is  granted  there  it  must  have 
apparent  merits,  as  suitors  find  out,  currently,  to  their  cost. 

I  am  not  in  favor  of  amending  the  constitution  so  as  to 
confide  the  subject  of  divorce  to  the  federal  tribunals,  for  the 
several  reasons  that  the  federal  government  has  already 
usurped  much  more  power  and  authority  than  ever  was 
originally  contemplated,  or  than  is  expedient  or  proper,  and 
those  powers  should  not  be  further  enlarged  or  augmented ; 
it  would  make  a  bad  precedent  and  lead  to  still  further 
interference  with  domestic  matters.  The  federal  judiciary  is 


84  MAKEIAGE  AND  DIVORCE. 

already  great  and  expensive,  but  would  have  to  be  greatly 
enlarged  and  augmented  if  it  had  the  business  of  divorce  now 
vested  in  three  thousand  local  tribunals  added  to  the  huge 
burden ;  and  it  will  never  be  found  expedient  to  abridge  the 
divorce  business  or  practice.  It  is  an  immense  institution — 
baneful,  but  necessary,  like  government,  the  legal  profession, 
or  the  penitentiary. 

Some  marriages  are  nullities,  without  any  action  of  court ; 
in  some  States  they  are  so  declared,  but  that  is  unnecessary ; 
they  are  necessarily  void  on  general  principles,  as  the 
attempted  marriage  of  a  person  already  married,  or  of  child- 
ren or  one  child,  under  the  age  of  seven,  or  of  two  girls 
(which  Miss  Mitchell  of  Memphis  designed  to  accomplish). 
Yet,  even  in  such  plain  cases,  the  aid  of  a  court  may  be 
invoked  in  order  to  adduce  the  facts  by  way  of  evidence, 
and  have  a  judicial  decree  in  order  to  silence  any  possible 
question  or  controversy  thereafter.  In  some  States,  also, 
other  marriages  which  are  not  ipso  facto  void  on  general 
principles  are  made  so  by  statute,  as  a  marriage  between 
whites  and  blacks,  and  such  marriages  may  be  also  adjudged 
void  like  the  other.  A  void  marriage,  however,  is  no  marriage 
in  legal  contemplation,  and  having  no  spissitude  has,  also,  no 
consequences  of  any  kind ;  neither  the  parties  themselves  nor 
any  other  person  need  give  any  heed  to  such  a  marriage ; 
but  there  are  cases  where,  although  a  marriage  may  be  void 
under  certain  conditions,  yet  a  judicial  inquiry  may  be 
needful  to  determine  if  those  conditions  exist.  It  is  so  in  im- 
potency,  want  of  sufficient  age  or  understanding,  consan- 
guinity, insanity,  etc.,  hence,  while  such  alliances  may  be 
called  void,  in  point  of  fact  they  are  only  voidable.  If  the 
result  of  the  inquiry  is  sufficient  the  court  will  decree  the 
marriage  to  have  been  void  db  initio,  or,  as  the  law  phrase 
sometimes  is,  enter  a  decree  of  nullity. 

A  voidable  marriage  is  one  which  is  good  and  valid  until 
declared  void  by  a  court  of  competent  jurisdiction ;  such  a 
marriage  is  good  during  life,  unless  the  aid  of  a  court  is 


DIVORCE.  85 

invoked,  and  is  good  till  declared  void :  from  that  day  only 
the  marriage  is  void,  and  all  consequences  of  a  marriage 
attach  until  then.  In  some  States  a  void  marriage  is  declared 
to  be  void  only  from  the  time  it  is  declared  void  by  the  court, 
as  the  following :  "When  either  of  the  parties  to  a  marriagej 
for  want  of  age  or  understanding,  shall  be  incapable  of 
assenting  thereto,  or  when  the  consent  of  either  party  shall 
have  been  obtained  by  force  or  fraud,  and  there  shall  have 
been  no  subsequent  voluntary  cohabitation  of  the  parties,  the 
marriage  shall  be  void/ro?ft  the-  time  its  nullity  shall  be  declared 
by  a  court  of  competent  authority."  1  This  is  monstrous 
logic,  or,  rather,  no  logic  at  all ;  and  it  is  doubtful  if  such 
statutes  will  be  upheld — it  is  worse  than  absurd.  A  man  is 
insane  and  incapable  of  making  a  contract — the  court  finds  it 
to  be  so  and  decrees  that  the  marriage  to  which  no  consent 
could  be  given  by  the  man,  was  good  and  valid  until  a  decree 
was  pronounced,  an:l  thenceforth  it  was  void:  all  consequences 
of  a  valid  marriage  obtained  in  this  void  marriage  till  it  was 
declared  so.  The  absurdity  is  apparent,  and  if  ever  property 
consequences  shall  attach  to  such  a  law,  the  law  certainly 
cannot  stand.  Suppose  that,  in  such  a  State,  a  widow  was 
entitled  to  all  the  personal  property  of  a  man  and  one-half 
his  reality,  as  in  Illinois,  and  some  "Becky  Sharp"  should 
entrap  a  rich  lunatic  into  marriage,  and  he  should  die  before 
a  suit  and  decree — would  a  court  uphold  a  law  to  despoil  his 
estate  through  the  medium  of  a  void  marriage  ?  But  there 
are  cases  of  voidable  marriages  which  are  properly  good  till 
avoided ;  no  attempt  may  ever  be  made  to  avoid  them,  if  not, 
they  remain  good.  The  canonical  disabilities  were  con- 
sanguinity, affinity,  and  impotence,  and  were  only  voidable 
under  the  canon  law.  In  this  country  impotence  is  sometimes 
basis  to  avoid  and  declare  null  and  void  a  marriage,  and 
sometimes  basis  for  divorce  merely,  but  as  a  rule  in  this 
country,  consanguinity  has  the  same  effect  here  as  it  did 

1  R.  S.  Wis.  Ed.  of  1858.  Code  of  Va.  of  1860. 


86  MAKBIAGE  AND  DIVORCE. 

under  the  canon  law,  while  affinity  after  the  death  of  the 
wife  is  generally  no  cause  at  all. 

A  divorce  avinculo  matrimonii  is  a  rupture  and  sundering 
of  the  contract,  status  or  bonds  of  matrimony,  from  the  date 
of  the  decree.  Many  consequences  flow  from  this  judgment, 
as  the  disposal  of  the  children,  the  future  support  of  the  wife, 
the  matters  of  dower,  the  imposition  of  disabilities  upon  the 
defendant  as  to  a  future  marriage,  the  consequences  in  an- 
other jurisdiction,  etc.  After  such  a  decree,  any  future  co- 
habitation between  the  same  parties  would  be  adultery ;  they 
may,  however,  and  sometimes  do,  marry  again. 

A  divorce  a  mensa  et  thoro  does  not  annul  the  marriage, 
but  decrees  that  the  parties  shall  live  apart,  either  for  a 
limited  time,  or  indefinitely.  The  complainant  may  termi- 
nate it  without  leave  of  court,  by  resuming  the  marital  rela- 
tion, but  if  the  defendant  should  undertake  to  interfere  with 
the  complainant  the  court  would  interfere  on  application  of 
the  complainant,  and  arrest  it,  either  by  injunction  or  impris- 
onment. Suits  for  alimony,  or  separate  maintenance,  will 
lie  in  some  States  by  express  statute,  without  a  suit  for  di- 
vorce. The  Illinois  statute,  which  is  a  sample  of  all,  merely 
provides  that,  where  a  married  woman  shall  live  apart  from 
her  husband  without  her  fault,  the  husband  maybe  compelled 
to  support  her.  Suits  for  jactitation  of  marriage  might  pos- 
sibly lie.  Some  years  ago  an  actress  named  Adah  Isaacs 
Menken  averred  that  she  and  John  C.  Heenan,  the  prize- 
fighter, were  man  and  wife,  which  Heenan  denied.  And  later, 
a  girl  in  Chicago  claimed  to  be  married  to  Adolph  Spies,  the 
anarchist,  by  proxy.  To  test  either  of  these  claims,  the  proper 
form  of  action  would  have  been  a  suit  for  jactitation  of  mar- 
riage. 

STATUTORY    PROVISIONS. 
CONCERNING  DIVORCE  AND  NULLITY  OF  MARRIAGE,  AND  CAUSES  THEREFOR. 

Maine. — Where  the  parties  are  related  by  consanguinity 
or  affinity,  where  one  or  both  of  them  was  insane  or  an  idiot 
at  time  of  marriage,  where  either  or  both  had  a  husband  or 


DIVOKCE.  87 

wife  living,  undivorced,  or  marriage  unannulled  or  a  nullity 
at  time  of  marriage,  or  when  either  shall  be  convicted  of  fel- 
ony, the  marriage  is  void  ipso  facto,  without  suit.  A  divorce 
may  be  decreed  for  adultery,  impotence,  excessive  cruelty,  ut- 
ter desertion  for  three  consecutive  years,  gross  and  confirmed 
habits  of  intoxication,  cruelty  and  abusive  treatment ;  in  favor 
of  the  wife  where  husband  is  negligent,  having  means,  in 
providing  suitable  support  for  wife  and  children.  Decree  nisi 
is  rendered,  to  be  confirmed  and  made  absolute  in  six  months, 
if  no  reconciliation  takes  place.  The  inculpated  party  can- 
not marry  till  the  lapse  of  two  years  from  date  of  decree. 
Where  parties  leave  the  State  and  procure  a  divorce  else- 
where for  a  cause  not  valid  in  this  State,  such  decree  shall 
have  no  validity  here.  Miscegenation  is  cause  for  divorce 
also. 

New  Hampshire. — A  marriage  is  void  between  parties  con- 
nected by  consanguinity  or  affinity,  or  where  either  or  ttoth 
had  a  former  husband  or  wife  living.  A  divorce  is  author- 
ized for  impotence,  adultery,  extreme  cruelty,  a  conviction  of 
felony  for  one  year  or  more,  treatment  which  injures  health, 
treatment  whose  tendency  is  to  impair  reason,  desertion  for 
three  years,  habitual  drunkenness  for  three  years,  the  join- 
ing of  any  religious  sect  which  denies  the  validity  or  correct- 
ness of  marriage,  and  a  refusal  to  cohabit  for  six  months, 
refusal  of  cohabitation  for  three  years,  desertion  for  three 
years,  wife  living  out  of  State  of  domicil  for  ten  years,  hus- 
band absent  from  country  for  three  years.  Jurisdiction  lies 
where  both  parties  are  domiciled,  or  where  complainant  is 
domiciled  and  defendant  served  with  process  in  the  State,  or 
where  one  is  domiciled  in  the  State  and  the  other  has  re- 
sided in  the  State  for  one  year. 

Vermont. — Parties  connected  by  consanguinity  or  affinity, 
or  if  either  has  a  husband  or  wife  living  when  marriage  is 
binding  and  of  force,  who  married  in  this  State,  such  marriage 
shall  be  void  ipso  Jacto ;  when  parties  are  under  the  age  of  le- 
gal consent,  or  one  or  both  is  an  idiot  or  insane  at  time  of 


88  MAERIAGE  AND  DIVORCE. 

marriage,  or  physically  incapable  of  entering  into  the 
riage  relation,  or  where  the  same  was  procured  by  force  or 
fraud,  any  such  marriage  is  voidable,  and  for  marriage  under 
age  of  legal  consent,  parent  or  guardian  may  sue.  A  divorce 
may  be  granted  for  adultery,  conviction  of  felony  for  three 
years,  or  more ;  intolerable  severity,  desertion  for  three  years, 
absence  for  seven  years,  gross  neglect  by  husband. 

Massachusetts.  —  Absolute  divorces  may  be  granted  for 
adultery,  impotence,  excessive  cruelty,  desertion  for  three 
years,  gross  and  continued  habits  of  intoxication,  cruel  and 
abusive  treatment,  five  years'  sentence  to  prison,  jail  or  house 
of  correction,  neglect  of  husband,  he  being  able,  to  provide 
his  family  the  necessaries  of  life,  refusal  to  cohabit,  contin- 
ued for  five  years,  when  either  party  has  united  with  reli- 
gious sect  which  denies  the  validity  of  marriage  and  con- 
tinues so  for  three  years,  refusing  cohabitation  during  that 
time.  All  decrees  are  nisi  and  cannot  be  confirmed  till  lapse 
of  six  months.  A  refusal  of  society  for  three  years  is  a 
cause.  Court  may  grant  a  decree  a  mensa  et  thoro  for  deser- 
tion, and  when  continued  for  three  years  may  grant  decree 
a  vinculo.  Complainant  must  have  five  years'  residence,  and 
defendant  cannot  marry  for  two  years. 

Rhode  Island.  —  Absolute  divorce  is  authorized  for  any 
marriage  which  by  law  is  either  void  or  voidable,  for  con- 
viction of  any  crime  by  which  defendant  is  civilly  dead,  or 
for  such  absence  as  creates  a  presumption  that  defendant  is 
naturally  dead.  Impotence,  adultery,  extreme  cruelty,  de- 
sertion for  five  years,  or  a  shorter  time,  at  the  discretion 
of  court,  continued  drunkenness,  neglect  of  husband  to  pro- 
vide for  family,  and  any  "  other  gross  misbehavior  or  wicked 
misconduct  repugnant  to,  and  in  violation  of,  the  marriage 
contract."  And  limited  divorces  may  be  granted  for  same 
causes.  Complainant  must  have  resided  in  the  State  for  one 
year  prior  to  bring  suit. 

Connecticut. — Absolute  divorce  may  be  granted  for  adul- 
tery, fraudulent  contract,  desertion  for  three  years,  seven 


DIVORCE.  89 

years'  absence,  habitual  intemperance,  intolerable  cruelty,  im- 
proper life,  conviction  of  infamous  crime,  impotence,  viola- 
tion of  conjugal  duty,  punishment  in  State  prison.  There 
must  be  three  years'  residence,  unless  cause  of  offence  arose 
since  parties  came  in  State,  less  than  three  years. 

New  York. — If  wife  was  not  sixteen  years  of  age  at  date 
of  marriage  she  may  avoid  it,  if  without  consent  of  father, 
mother  or  guardian,  when  there  was  no  cohabitation  nor  ra- 
tification after  she  reached  the  age  of  sixteen ;  either  may 
avoid  if  one  or  both  was  underage  of  consent,  or  when  former 
husband  or  wife  of  either  was  living  and  marriage  in  force  at 
time  of  marriage,  or  one  party  was  idiotic  or  a  lunatic,  or 
consent  was  obtained  by  force,  fraud  or  duress,  or  physically 
incapable  of  entering  into  the  marriage  relation.  A  divorce 
may  by  granted  for  adultery  when  both  resided  in  State  at 
time  offence  was  committed,  or  when  they  were  married  in  the 
State,  or  if  plaintiff  resided  here  when  offence  was  committed 
the  wife  can  have  a  domicil  here  for  purposes  of  suit,  regardless 
of  domicil  of  husband.  Divorce  a  mensa  et  thoro  is  allowed  for 
cruelty,  such  conduct  as  renders  cohabitation  unsafe  or 
improper,  abandonment,  refusal  of  husband  to  provide  for 
wife.  This  divorce  may  be  forever  or  for  a  limited  time. 

New  Jersey. — An  absolute  divorce  is  authorized  where  either 
party  had  husband  or  wife  living,  undivorced,  or  where  parties 
connected  by  consanguinity  or  affinity,  adultery,  desertion  for 
three  years,  or  impotence.  The  court  of  chancery  has  juris- 
diction at  residence  at  time  of  commission  of  offence,  or,  if 
the  offence  was  adultery,  if  committed  here  and  party  resides 
here  at  time  of  filing  bill,  or  if  desertion,  party  must  have  re- 
sided here  three  years. 

Pennsylvania. — A  marriage  within  the  prohibited  degrees 
of  consanguinity  or  affinity  is  void  ipso  facto,  and  an  absolute 
divorce  may  be  had  for  impotence  or  incapability  of  procreation, 
where  another  husband  or  wife  is  living,  adultery,  desertion  for 
two  years,  cruel  or  barbarous  treatment  by  husband,  en- 
dangering life,  or  husband  offering  such  intolerable  indigni- 


90  MAKRIAGE  AND  DIVORCE 

ties  as  to  make  his  wife's  life  burdensome ;  same  of  wife  to- 
ward husband ;  conviction  of  felony  for  two  years  or  more ; 
consent  acquired  by  force  or  fraud.  Wife  may  have  limited 
divorce  when  husband  abandons  family,  turns  wife  out  of 
doors,  endangers  her  life  by  cruel  treatment,  adultery,  or 
offers  her  such  indignities  as  to  make  wife's  condition  in- 
tolerable or  her  life  burdensome. 

Delaware. — Absolute  divorce  is  authorized  for  adultery, 
desertion  for  three  years,  habitual  drunkenness,  impotence, 
extreme  cruelty,  conviction  of  felony ;  a  limited  or  absolute 
divorce  at  discretion  of  court  for  a  marriage  of  male  under 
eighteen,  or  female  under  sixteen,  or  wilful  neglect  of  hus- 
band to  provide  for  wife  for  three  years.  A  marriage  may  be 
declared  null  and  void  within  the  prohibited  degrees,  miscege- 
nation, or  where  either  party  had  a  husband  or  wife  living  at 
time  of  marriage ;  when  citizens  resort  to  another  jurisdiction 
to  get  divorce,  the  same  is  invalid  here.  Inculpated  party 
prohibited  from  remarrying  again. 

Maryland. — Marriage  may  be  declared  null  and  void  for 
impotence  or  for  any  of  the  usual  causes  of  nullity.  Divorce 
may  be  had  for  adultery,  abandonment  for  three  years, "carnal 
conduct  of  wife  before  marriage,  unknown  to  the  husband. 
Divorce  a  mensa  et  thoro  may  be  had  for  cruelty,  excessively 
vicious  conduct,  abandonment  and  desertion.  Two  years' re- 
sidence necessary  unless  cause  arose  here. 

District  of  Columbia. — Absolute  divorce  may  be  granted 
when  either  party  has  husband  or  wife  living  at  time  of  mar- 
riage, natural  incapacity,  adultery,  habitual  drunkenness  for 
three  years,  cruel  treatment,  endangering  life  or  health,  de- 
sertion for  two  years ;  a  divorce  a  mensa  et  thoro  authorized  in 
discretion  of  court  for  cruel  treatment  endangering  life  or 
health,  or  reasonable  apprehension  of  bodily  harm.  Two 
years'  residence  required. 

Virginia. — A  marriage  is  void,  ipso  facto,  oy  cause  of  mis- 
cegenation or  where  either  party  had  husband  or  wife  living 
at  time  of  marriage,  also  when  male  was  under  fourteen,  and 


DIVOKCE.  91 

female  under  twelve,  years  of  age.  A  marriage  is  voidable 
when  the  parties  are  within  prohibited  degrees,  insane,  iiliotic 
or  impotent  at  date  of  marriage.  A  divorce  a  vinculo  matri- 
monii  may  be  granted  for  adultery,  natural  or  incurable  im- 
potence, conviction  of  felony  either  before  or  after  marriage,  or, 
beingindicted  for  felony,  becomes  a  fugitive  from  justice  for  two 
years — desertion  for  five  years,  wife  pregnant  before  marriage 
by  person  other  than,  and  without  knowledge,  of  husband,  or 
that  she  had  been  a  prostitute  prior  to  marriage.  A  divorce 
a  mensa  et  thoro  may  be  decreed  for  cruelty,  creating  reason- 
able apprehension  of  bodily  harm,  abandonment  or  desertion. 
One  year's  residence  is  required. 

West  Virginia. — A  marriage  is  voidable  for  miscegenation, 
when  either  party  has  husband  or  wife  living,  parties  within 
the  prohibited  degrees,  insanity  at  marriage,  incapacitated 
from  physical  causes  from  entering  into  the  married  state, 
under  the  ages  of  consent.  A  divorce  a  vinculo  is  authorized 
for  adultery,  natural  or  incurable  impotency,  conviction  of 
felony  either  before  or  after  marriage,  abandonment  or  deser- 
tion for  three  years,  wife  pregnant  before  marriage,  not  by 
or  with  knowledge  of  husband,  or  a  prostitute  before  marriage, 
"or  where,  prior  to  such  marriage,  the  husband,  without  knowl- 
edge of  the  wife,  had  been  notoriously  a  licentious  person." 
A  divorce  a  mensa  et  thoro  is  allowed  for  cruelty  or  intolerable 
treatment  creating  reasonable  apprehension  of  bodily  hurt, 
being  habitual  drunkard,  abandonment  or  desertion.  A 
false  charge  of  prostitution  made  by  husband  against  wife 
deemed  cruelty.  Must  be  resident  at  time  of  suit. 

North  Carolina. — Miscegenation  makes  marriage  void  ipso 
facto.  Divorce  a  vinculo  granted  if  either  party  shall  separate 
from  the  other  and  live  in  adultery,  wife  commit  adultery, 
wife  pregnant  before  marriage,  impotence ;  where  husband,  be- 
ing indicted  for  felony,  flees  the  State.  Divorce  a  mensa  et  thoro 
authorized  for  abandonment,  either  party  turning  the  other 
out  of  doors,  cruelty  or  barbarity  endangering  life,  intolerable 
indignity,  habitual  drunkenness. 


92  MARRIAGE  AND  DIVORCE. 

South  Carolina. — No  divorce  ever  authorized  here  except 
during  the  existence  of  the  negro  legislatures  after  the  war. 
When  the  whites  got  control,  they  legalized  what  had  been 
granted,  and  prohibited  it  in  future. 

Georgia. — A  total  divorce  is  authorized  for  marriage  with- 
in the  prohibited  degrees;  for  such  mental  incapacity  as 
barred  consent :  impotence :  force :  fraud :  menace :  duress : 
pregnancy  of  wife  before  marriage  not  by,  and  without 
knowledge  of,  husband ;  adultery :  desertion  for  three  years  : 
sentence  to  prison  for  two  years,  cruelty  for  two  consecutive 
years.  In  the  discretion  of  the  jury,  a  divorce  may  also  be 
granted  for  cruel  treatment  or  habitual  intoxication.  A  par- 
tial divorce  is  authorized  for  any  cause  good  in  England  prior 
to  May  4th,  1784.  Eesidence  of  two  yeara  required  for  a 
cause  a  vinculo  matrimonii,  or  one  year  for  a  cause  a  mensa  et 
thoro. 

Florida. — Absolute  divorce  authorized  for  a  marriage  within 
the  prohibited  degrees :  impotence  :  adultery :  either  party  hav- 
ing husband  or  wife  living :  extreme  cruelty,  or  habitual  in- 
dulgence of  violent  and  ungovernable  temper :  habitual  intem- 
perance :  desertion  for  one  year ;  in  case  where  husband  or 
wife  has  obtained  divorce  elsewhere  not  binding  on  complain- 
ant, he  or  she  may  have  divorce.  Kesidence  of  two  years 
required.  No  divorce  for  adultery  if  there  was  collusion. 
Wife  may  have  alimony  without  divorce  for  one  year's  deser- 
tion :  husband  living  in  adultery  for  three  months :  cruel  treat- 
ment, or  any  act  which  is  cause  of  divorce. 

Kentucky. — Absolute  divorce  for  impotence  or  such  malfor- 
mation as  to  prevent  sexual  intercourse,  living  apart  without 
cohabitation  for  five  years :  sentence  for  felony:  abandonment 
for  one  year :  living  in  adultery :  felonious  concealment  of  a 
loathsome  disease  :  consent  obtained  by  force,  fraud  or  duress  : 
refusal  of  society.  To  wife:  for  continual  drunkenness  of 
husband  for  one  year,  habitual  indignity  for  six  months, 
cruel  treatment  or  injury.  To  husband:  wife  pregnant  before 
marriage,  not  by  and  without  knowledge  of,  husband :  adul- 


DIVORCE.  93 

tery  of  wife,  or  such  lewd  and  lascivious  conduct  as  creates  a 
presumption  of  adultery :  habitual  drunkenness  for  one  year. 
Suit  to  be  brought  in  county  of  wife's  residence ;  if  she  live 
not  in  State,  then  in  county  of  husband's  residence.  One 
year  residence  required.  Suit  barred  in  five  years  after  act 
complained  of.  Limited  divorce  may  be  had  for  the  same  or 
for  any  other  cause,  in  discretion  of  court. 

Tennessee. — An  absolute  divorce  authorized  for  impotence 
and  incapacity  of  procreation  at  time  of  contract:  second 
marriage  in  violation  of  a  previous  one  still  subsisting :  adul- 
tery :  desertion  for  two  years :  conviction  of  infamous  crime 
or  sentence  to  penitentiary:  attempting  life  of  complainant: 
refusal  of  wife  to  remove  to  Tennessee  with  husband  and 
remaining  absent  for  two  years :  wife  pregnant  at  time  of 
marriage  without  knowledge  or  procurement  of  husband :  and 
habitual  drunkenness  when  contracted  after  marriage;  a 
mensa  et  thoro  for  cruel  and  intolerable  treatment  by  hus- 
band, making  it  unsafe  for  wife  to  live  with,  or  cohabit  with, 
him  :  intolerable  indignities  by  husband  to  wife  :  or  that  hus- 
band abandoned  wife  or  turned  her  out  of  doors :  or,  being  of 
ability,  neglected  or  refused  to  provide  for  wife.  No  matter 
when  the  cause  of  action  arose.  Eesidence  of  two  years 
required. 

Alabama. — Absolute  divorces  may  be  granted  by  the  chan- 
cery court : 

1.  When  either  party  is  physically  and   incurably  inca- 
pacitated from  entering  into  the  marriage  state. 

2.  Adultery. 

3.  For  voluntary  abandonment  from  bed  and  board  for 
two  years  next  preceding  the  filing  of  the  bill. 

4.  Imprisonment  in  the  penitentiary  of  this  or  any  other 
State,  for  two  years,  the  sentence  being  for  seven  years  or 
longer. 

5.  For  the   commission   of  the   crime   against  nature, 
whether  with  mankind  or  beast,  before  or  after  marriage. 


94  MAKEIAGE  AND  DIVORCE. 

6.  For  becoming    addicted,  after  marriage,  to  habitual 
drunkenness. 

7.  To  the  wife  when  the  husband  has  committed  actual 
violence  on   her  person,  attended   with  danger  to   life    and 
health,  or  when,  from  his  conduct,  there  is  reasonable  appre- 
hension of  such  violence. 

8.  To  the  husband  when  the  wife  was  pregnant  at  the 
time  of  marriage  without  his  agency  or  knowledge. 

On  bill  filed  for  abandonment,  three  years'  residence  in 
this  State  by  the  complainant  must  be  alleged  and  proved. 
When  defendant  is  a  non-resident,  complainant  must  have 
been  a  bonajide  resident  of  this  State  for  one  year  next  pre- 
ceding the  filing  of  the  bill.  Divorce  for  adultery  of  wife  bars 
her  of  dower,  and  of  any  distributive  share  in  the  personal 
estate  of  the  husband.  A  divorce  for  pregnancy  bastardizes 
the  issue.  A  divorce  deprives  the  husband  of  all  control  over 
the  separate  estate  of  the  wife. 

Mississippi. — An  absolute  divorce  is  authorized  for  natural 
impotence :  adultery :  imprisonment  in  penitentiary :  desertion 
for  two  years :  habitual  drunkenness :  habitual  and  excessive 
opium,  morphine  or  other  drug  habit :  habitual  cruelty  and 
intolerable  treatment :  insanity  or  idiocy :  a  prior  subsisting 
marriage :  pregnancy  of  wife  before  marriage  without  knowl- 
edge of,  or  procurement  by,  husband :  connected  by  consan- 
guinity or  affinity.  Chancery  court  has  jurisdiction  when 
both  are  domiciled  in  State,  or  when  complainant  domiciled 
there  and  defendant  personally  served  there,  or  when  one  was 
domiciled,  and  one  or  the  other  had  one  year's  residence  in 
State. 

Louisiana. — Marriages  are  void  when  free  contract  lack- 
ing, or  there  is  a  mistake  in  the  person.  Divorce  a  mensa  et 
tJioro  allowed  for  adultery :  felony :  habitual  intemperance :  ex- 
cesses :  cruel  treatment :  outrages :  public  defamation :  aban- 
donment :  attempt  to  take  life  of  complainant :  fugitive  from 
justice:  and  divorces  a  vinculo  matrimonii  will  also  lie,  but  a 
divorce  a  mensa  et  thoro  and  one  year's  lapse  without  recon- 


DIVOKCE.  95 

ciliation  must  be  had  first  in  all  cases  except  adultery  and 
infamous  punishment. 

Texas. — Natural  or  incurable  impotence  at  time  of  mar- 
riage renders  it  null  and  void,  ipso  facto.  Absolute  divorce 
authorized  for  excesses :  cruel  treatment :  or  outrage  of  such 
nature  as  to  be  insupportable.  In  favor  of  husband  for  adul- 
tery of  wife,  or  abandonment  for  three  years ;  in  favor  of  wife 
for  husband's  desertion  for  three  years,  or  living  in  adultery ; 
in  favor  of  either  for  conviction  of  felony,  but  suit  cannot  be 
brought  for  one  year  after  conviction,  nor  then,  if  pardoned. 
Complainant  must  reside  in  county  for  six  months. 

Arkansas. — Absolute  divorce  authorized f or  impotency:  willful 
desertion  for  one  year  without  reasonable  cause :  where  either 
party  had  a  husband  or  wife  living  at  the  time  of  the  marriage : 
where  either  is  convicted  of  felony  or  other  infamous  crimes, 
habitual  drunkenness  for  one  year :  such  cruel  and  barbarous 
treatment  or  personal  indignity  as  shall  render  the  condition 
of  the  applicant  intolerable :  and  adultery  subsequent  to  the 
marriage.  The  pleadings  are  not  required  to  be  sworn  to, 
but  either  party  may  require  answers,  under  oath,  to  interro- 
gations touching  any  matter  of  propriety.  The  plaintiff 
must  allege  and  prove,  in  addition  to  a  legal  ground  of 
divorce,  first,  a  residence  in  the  State  for  one  year  next  before 
suit  is  brought ;  second,  that  the  cause  of  divorce  occurred  or 
existed  in  this  State,  or,  if  out  of  the  State,  either  that  it  was 
a  legal  cause  of  divorce  in  the  State  where  it  occurred  or 
existed,  or  that  the  plaintiff's  residence  was  then  in  this  State ; 
and,  third,  that  the  cause  of  divorce  existed  or  occurred  with- 
in five  years  next  before  the  commencement  of  the  suit.  The 
court  may  allow  alimony  ad  interim,  and  attorney's  fees  for 
the  wife.  On  final  judgment  each  party  is  restored  to  the 
undisposed  property  which  he  or  she  brought  into  the  mar- 
riage. The  court  may  restore  the  wife  to  her  maiden  name. 
The  court  may  allow  the  wife  reasonable  alimony,  which  may 
be  changed  from  time  to  time.  Plaintiff  must  have  had  one 


96  MAURI  AGE  AND  DIVORCE. 

year's  residence.  Cause  barred  after  five  years.  Limited 
divorces  allowed  for  same. 

Missouri. — Absolute  divorce  allowed  here  for  impotence: 
prior  subsisting  marriage :  adultery :  desertion  for  one  year : 
conviction  of  felony:  drunkenness  for  one  year:  cruel  and 
barbarous  treatment,  so  as  to  endanger  life :  intolerable  in- 
dignities :  when  husband  becomes  a  vagrant :  conviction  of 
infamous  crime  before  marriage :  wife  pregnant  before  mar- 
riage without  aid  or  knowledge  of  husband.  One  year's  resi- 
dence of  plaintiff  required. 

Ohio. — Absolute  divorce  authorized  where  prior  subsistirf^ 
marriage  exists :  willful  absence  three  years :  adultery :  im- 
potence, sentence  to  penitentiary  if  sought  during  imprison- 
ment :  a  divorce  procured  out  of  State  which  releases  defend- 
ant and  binds  complainant:  extreme  cruelty:  fraudulent 
contract :  gross  neglect  of  duty :  three  years'  drunkenness ; 
no  limited  divorce,  but  alimony  without  divorce  for  adultery, 
abandonment  of  wife,  separation,  habitual  drunkenness, 
sentence  to  penitentiary.  Eesidence  of  one  year  required. 
Wife  may  have  separate  domicil. 

Michigan. — Marriages  within  prohibited  degrees  of  con- 
sanguinity or  affinity,  prior  subsisting  marriage,  when  either 
party  was  insane  or  an  idiot  at  time  of  marriage,  if  solemnized 
in  State,  void,  ipso  facto ;  also  imprisonment  for  life,  same. 
Absolute  divorce  granted  for  adultery:  physical  incompetency : 
imprisonment  for  three  years :  desertion  for  two  years : 
habitual  drunkenness :  and  when  a  divorce  has  been  obtained 
by  defendant  in  another  State.  Limited  (or  absolute,  in  dis- 
cretion of  court)  divorce  for  extreme  cruelty:  desertion  for 
two  years  :  or  failure  of  husband  to  support  wife. 

Indiana. — Marriages  within  prohibited  degrees,  or  of  differ- 
ent colors,or  when  prior  marriage  subsisting,  are  void  ipso  facto ; 
when  parties  are  incapacitated,  by  age  or  lack  of  understand- 
ing, they  are  voidable.  Absolute  divorces  are  authorized  for 
adultery :  impotence :  abandonment  for  two  years :  cruelty 
and  inhumanity :  habitual  drunkenness :  failure  of  husband 


DIVORCE.  97 

to  support  wife  for  two  years :  conviction  of  infamous  crime ; 
no  decree  for  adultery  if  connivance  or  condonation  took 
place.  Prosecuting  attorney  to  defend  unless  defendant 
himself  should  defend.  No  limited  divorce,  but  wife  may 
have  alimony  without  divorce  for  desertion :  conviction  of 
felony :  habitual  drunkenness :  and  failure  to  support :  or  join- 
ing sect  which  denies  validity  of  marriage. 

Illinois. — Absolute  divorce  authorized  for  impotence :  form- 
er marriage  subsisting :  adultery :  desertion  for  two  years : 
habitual  drunkenness  for  two  years :  attempting  life  of  de- 
fendant :  extreme  and  repeated  cruelty :  conviction  of  a  felony. 
Residence  of  one  year  required,  unless  cause  arose  here. 

Wisconsin. — Marriages  within  the  prohibited  degrees  void 
ipso  facto:  same  if  a  prior  subsisting  marriage  exists ;  if  parties 
from  lack  of  age  or  understanding  have  not  a  contracting 
capacity,  force  or  fraud  used,  the  same  is  voidable ;  sentence 
for  imprisonment  for  life  makes  it  void,  ipso  facto.  An  absolute 
divorce  authorized  for  adultery :  impotence :  imprisonment  for 
three  years :  desertion  for  one  year :  cruel  and  inhuman  treat- 
ment :  or  wife  a  drunkard :  drunkenness  of  either  for  one  year : 
or  separation  five  years.  Divorce  a  mensa  et  thoro  for  deser- 
tion drunkenness:  or  cruelty:  extreme  cruelty:  neglect  of 
husband  to  provide  for  family :  or  conduct  rendering  cohabita- 
tion unsafe.  Residence  one  year,  unless  cause  arose  here. 

Iowa. — An  absolute  divorce  will  lie  for  adultery :  desertion 
for  two  years :  conviction  of  felony :  habitual  drunkard :  intol- 
erable treatment  calculated  to  end  life  of  wife  complainant : 
pregnancy  of  wife  before  marriage :  without  co-operation  or 
knowledge  of  husband :  courts  will  annul  illegal  marriages, 
prior  marriage  subsisting,  insanity  or  idiocy  at  marriage,  or 
impotence.  Must  have  residence  in  county  for  one  year. 

Minnesota. — A  marriage  within  tlfe  prescribed  degrees  is 
void  ipso  facto  if  solemnized  within  the  State.  If  husband 
or  wife  is  absent  for  five  years,  marriage  void  from  date  of 
decree ;  a  marriage  of  persons  not  of  proper  age  or  under- 
standing, or  when  consent  was  gained  by  force  or  fraud,  is 


98  MARRIAGE  AND  DIVORCE. 

voidable.  An  absolute  divorce  is  authorized  for  adultery :  im- 
potence :  cruel  and  inhuman  treatment :  conviction  of  felony : 
wilful  desertion  for  three  years :  habitual  drunkenness  for  one 
year.  Limited  divorce  to  wife  for  cruelty :  conduct  rendering 
intercourse  unsafe:  abandonment:  and  refusal  of  support. 
Connivance,  condonation  or  recrimination  are  bars,  and  one 
year's  residence  required. 

Kansas. — A  marriage  is  void  when  parties  lack  age  or 
understanding.  An  absolute  divorce  lies  in  case  of  prior 
subsisting  marriage,  abandonment  for  one  year :  adultery : 
impotence :  pregnancy  of  wife  before  marriage:  extreme  cruelty : 
fraudulent  contract :  habitual  drunkenness  :  gross  neglect  of 
duty  of  husband  or  wife:  conviction  of  felony.  Wife  may 
have  alimony  without  decree  for  any  of  the  above  causes,  at 
her  discretion.  One  year's  residence  is  required.  Wife  may 
have  separate  domicil. 

Nebraska. — A  marriage  contracted  by  parties  under  legal 
age  is  voidable.  An  absolute  divorce  will  lie  for  adultery : 
physical  incompetency :  imprisonment  for  three  years :  deser- 
tion for  two  years :  habitual  drunkenness :  improper  life  : 
extreme  cruelty :  desertion  for  two  years :  wilful  or  gross 
neglect  of  husband  to  provide.  Six  months'  residence  is 
required. 

Colorado.  —  Absolute  divorce  authorized  for  impotence: 
prior  subsisting  marriage :  adultery :  desertion  for  one  year : 
desertion  from  State  with  no  intention  of  returning :  husband 
failing  to  support  wife  for  one  year :  habitual  drunkenness  for 
one  year :  extreme  cruelty :  conviction  of  felony :  legitimacy 
of  children  not  affected,  except  for  prior  marriage.  One 
year's  residence  required  unless  offence  occurred  in  this 
State,  or  while  one  or  both  parties  resided  here ;  no  decree 
where  collusion  occurred. 

Dakotas. — Absolute  divorce  authorized  for  adultery:  extreme 
cruelty :  wilful  desertion :  wilful  negligence :  habitual  intem- 
perance :  conviction  of  a  felony : 

Section   2,561. — Extreme   cruelty   is    the    infliction   of 


DIVOBCE.  99 

grievous  bodily  injury  or  grievous  mental  suffering  upon 
the  other,  by  one  party  to  the  marriage. 

Section  2,562. — Wilful  desertion  is  the  voluntary  separa- 
tion of  one  of  the  married  parties  from  the  other,  with  intent 
to  desert. 

1. — The  refusal  of  either  party  to  dwell  in  the  same  house 
with  the  other  party,  when  there  is  no  just  cause  for  such 
refusal,  is  desertion. 

2. — When  one  party  is  induced  by  the  stratagem  or  fraud 
of  the  other  party  to  leave  the  family  dwelling  place  or  to  be 
absent,  and  during  such  absence,  the  offending  party  departs 
with  intent  to  desert  the  other,  it  is  desertion  by  the  party 
committing  the  stratagem  or  fraud,  and  not  by  the  other. 

3. — Departure  or  absence  of  one  party  from  the  family 
dwelling  place,  caused  by  cruelty  or  by  threats  of  bodily  harm 
from  which  danger  would  be  reasonably  apprehended  from 
the  other,  is  not  desertion  by  the  absent  party,  but  is  deser- 
tion by  the  other  party. 

Section  2,563. — Wilful  neglect  is  the  neglect  of  the  hus- 
band to  provide  for  his  wife  the  common  necessaries  of  life, 
he  having  ability  to  do  so,  or  it  is  the  failure  to  do  so  by 
reason  of  idleness,  profligacy,  or  dissipation. 

Section  2,564. — Habitual  intemperance  is  that  degree  of 
intemperance  from  the  use  of  intoxicating  drinks  which  dis- 
qualifies the  person  a  great  portion  of  the  time  from  properly 
attending  to  business,  or  which  would  reasonably  inflict  a 
course  of  great  mental  anguish  upon  the  innocent  party. 

Section  2,565. — Wilful  desertion,  wilful  neglect  or  habitual 
intemperance  must  continue  for  one  year  before  either  is  a 
ground  for  divorce. 

Decree  denied  on  proof  of  connivance,  condonation,  col- 
lusion, recrimination.  Guilty  party  cannot  marry.  Wife 
may  acquire  separate  domicil  ;  ninety  days'  residence 
required. 

New  Mexico  authorizes  absolute  divorce  for  adultery, 
abandonment,  cruelty,  or  inhuman  treatment. 

Arizona. — Absolute  divorce  authorized  for  impotence : 
extreme  cruelty  or  outrageous  treatment :  for  adultery  of  wife : 
desertion  for  six  months:  habitual  intemperance:  wilful 
neglect  for  six  months :  adultery :  conviction  of  felony :  but  no 


100  MARRIAGE  AND  DIVORCE. 

suit  till  six  months  after  conviction.  Residence  required,  six 
months. 

Idaho. — Nullity  of  marriage  authorized  when  age  of  con- 
sent not  reached  and  no  permission  obtained :  or  prior  sub- 
sis  ting  marriage  :  or  party  of  unsound  mind :  consent  obtained 
by  force  or  fraud :  or  party  physically  incurable.  An  absolute 
divorce  authorized  for  adultery :  extreme  cruelty :  wilful  deser- 
tion :  wilful  negligence :  habitual  intemperance  for  one  year : 
conviction  of  felony.  Decree  denied  on  proof  of  connivance, 
condonation,  collusion,  or  recrimination.  Six  months' 
residence  required. 

California. — Incestuous  or  void  marriage  may  be  so  de- 
clared. Marriage  annulled  for  want  of  age  of  legal  consent 
without  parental  permission :  prior  subsisting  marriage ;  party 
of  unsound  mind :  consent  obtained  by  fraud  or  force :  phy- 
sical incapacity.  An  absolute  divorce  may  be  granted  for 
adultery :  extreme  cruelty :  desertion :  neglect  of  husband  to 
provide :  habitual  intemperance :  conviction  of  felony.  Con- 
donation, connivance,  collusion  and  recrimination,  prevail 
as  defenses.  Limitation  of  two  years  in  adultery.  Husband 
and  wife  may  have  separate  domicil.  Six  months'  residence 
required. 

Nevada. — Absolute  divorce  lies  for  impotence:  adultery: 
desertion  one  year:  conviction  of  felony:  habitual  gross 
drunkenness  committed  since  marriage :  incapacitated  from 
support :  extreme  cruelty :  neglect  of  husband  to  support  fam- 
ily one  year ;  may  be  annulled  for  force,  menace  or  duress. 
Jurisdiction  where  cause  accrued  or  defendant  resides  or  is 
found,  or  plaintiff  resides,  if  in  county  of  last  cohabitation, 
or  residence  six  months. 

Montana. — Absolute  divorce  authorized  for  impotency: 
prior  marriage  subsisting :  adultery :  desertion  for  one  year : 
or  if  husband  has  left  State  without  intention  to  return,  habit- 
ual drunkenness  for  one  year :  extreme  cruelty :  conviction  of 
felony.  One  year's  residence  required,  unless  offense  occurred 
here,  or  while  one  or  both  parties  resided  here. 


**.>.:*;       .v,r. 

DIVORCE.  101 

£7ta/&. — Absolute  divorce  lies  for  impotence :  adultery :  de- 
sertion for  one  year,  wilful  neglect  of   husband   to  provide, 
habitual  drunkenness ;  conviction  of  felony :  cruel  treatment 
involving  great  bodily   or  mental  anguish.     One  year  resi- 
dence required, 

Washington. — Absolute  divorce  authorized  for  force  or 
fraud  in  getting  married :  adultery :  impotence :  abandonment 
for  one  year :  cruel  treatment  or  personal  indignity  rendering 
life  burdensome :  habitual  drunkenness :  neglect  of  husband  to 
provide :  conviction  of  felony :  chronic  mania  or  dementia  for 
ten  years:  "for  any  other  cause  deemed  by  court  sufficient 
and  the  court  satisfied  that  the  parties  can  no  longer  live  to- 
gether." Eesidence  required  of  one  year. 

Wyoming. — Marriage  void  ipso  facto  where  prior  subsist- 
ing marriage  exists,  or  parties  were  insane  or  idiotic,  or  with- 
in prohibited  degrees.  Marriage  voidable  if  celebrated  while 
parties  were  under  legal  consent,  or  by  force  or  fraud.  Ab- 
solute divorce  for  adultery :  physical  incompetency ;  conviction 
of  felony :  desertion  for  one  year :  habitual  drunkenness : 
extreme  cruelty :  husband's  neglect  to  provide  for  one  year : 
intolerable  indignities :  husband  a  vagrant :  conviction  of  fel- 
ony prior  to  ^marriage :  pregnancy  of  wife  before  marriage. 
Six  months'  residence  required. 

Oregon. — Marriages  are  void  ipso  facto  when  within  pro- 
hibited degrees,  or  prior  subsisting  marriage  exists,  or  one  of 
the  parties  is  white  and  the  other  one-quarter  or  more  negro 
blood.  Voidable  for  want  of  age  or  understanding,  or.  use  of 
force  or  fraud.  Absolute  divorce  for  impotence :  adultery :  con- 
viction of  felony :  drunkenness  or  desertion  for  one  year :  cruel 
and  inhuman  treatment,  rendering  life  unendurable.  One 
year  residence. 

A  GENERAL  SUMMARY  OF  THE  ABOVE. 

There  are  no  limited  divorces  in  the  following  States  and 
territories,  viz. :  Arkansas,  Colorado,  Connecticut,  Florida, 
Indiana,  Illinois,  Idaho,  Iowa,  Kansas,  Massachusetts,  Mis- 


102  MAKEIAGE  AND  DIVOECE. 

sissippi,  Montana,  Nevada,  New  Hampshire,  New  Mexico, 
Vermont,  Washington — no  proceeding  but  nullity  of  marriage 
and  a  vinculo  matrimonii.  Adultery  is  a  good  cause  for  di- 
vorce everywhere.  Natural  impotence  is  a  good  cause  for 
nullity  of  marriage  or  divorce,  everywhere.  Bigamy  is  cause 
of  nullity  of  marriage  everywhere,  except  in  Arkansas,  Colo- 
rado, Florida,  Kansas,  Ohio,  Pennsylvania,  Tennessee,  Mon- 
tana, New  Jersey ;  and  in  those  States  it  is  cause  for  divorce. 
In  Arizona,  Arkansas,  California,  Colorado,  Dakota,  Florida, 
Idaho,  Kansas,  Kentucky,  Missouri,  Montana,  Nevada,  Utah, 
Washington  and  Wisconsin,  divorces  are  decreed  for  abandon- 
ment for  one  year.  In  Alabama,  Illinois,  Indiana,  Iowa,  Michi- 
gan, Mississippi,  Nebraska,  Pennsylvania  and  Tennessee,  di- 
vorces are  authorized  for  two  years'  abandonment.  In  Connecti- 
cut, Delaware,  District  of  Columbia,  Georgia,  Maine,  Maryland? 
Massachusetts,  Minnesota,  New  Jersey,  Ohio,  Oregon,  Texas, 
Vermont  and  West  Virginia,  divorces  are  authorized  for  de- 
sertion for  three  years.  In  Khode  Island  and  Virginia,  five  years' 
desertion  is  required ;  and  in  Louisiana  and  North  Carolina, 
abandonment  is  a  good  cause,  but  the  period  is  left  indefi- 
nite ;  simple  unexplained  absence  is  a  good  cause  for  divorce 
after  seven  years ;  after  three  years  in  New  Hampshire ;  if 
husband  has  left  state  in  Montana  with  no  intention  to  re- 
turn; simple  separation  after  five  years  in  Kentucky  and 
Wisconsin.  Cruel  and  inhuman  treatment  is  good  every- 
where. Attempt  to  take  life  of  defendant,  good  in  Illinois, 
Louisiana  and  Tennessee.  Habitual  drunkenness  is  good 
everywhere,  generally  with  no  limit,  but  two  years  in  Idaho, 
Illinois  and  Ohio ;  one  year  in  Arkansas,  California,  Colorado, 
Dakota,  Florida,  Kentucky,  Minnesota,  Missouri,  Montana, 
and  Wisconsin,  and  three  years  in  New  Hampshire  and  Ohio. 
Neglect  of  husband,  he  being  of  ability,  to  provide  for  his 
family,  is  good  cause  in  several  States,  and  limited  to  three 
years  in  Delaware,  two  years  in  Idaho,  Indiana  and  Kansas, 
and  one  year  in  California,  Colorado,  Dakota,  Nevada :  and 
no  limit  in  Massachusetts,  Michigan,  Minnesota,  Nebraska, 


DIYOBCE.  103 

Rhode  Island,  Utah,  Vermont,  Virginia,  West  Virginia  and 
Wisconsin.  Imprisonment  for  crime  is  good  in  some  States, 
but  limited  to  sentences  of  five  years  in  Massachusetts,  three 
years  in  Michigan,  Nebraska.  Vermont  and  Wisconsin,  two 
years  in  Alabama,  Georgia,  Idaho ;  more  than  two  in  Penn- 
sylvania ;  no  limit  in  Minnesota,  Mississippi,  Ohio,  Virginia 
and  Washington.  Conviction  of  felony  is  cause  in  Arizona, 
Arkansas,  California,  Colorado,  Connecticut,  Dakota,  Dela- 
ware, Illinois,  Indiana,  Iowa,  Kansas,  Kentucky,  Louisiana, 
Missouri,  Nevada,  Oregon,  Tennessee,  Texas  (twelve  months 
after  sentence),  Utah,  Virginia,  West  Virginia,  Montana;  in 
Ehode  Island  for  any  crime  causing  civil  death,  arson  and 
homicide.  Pregnancy  of  ivife  at  time  of  marriage  is  cause  in 
Alabama,  Georgia,  Kansas,  Kentucky,  Missouri,  North  Caro- 
lina, Tennessee,  Virginia  and  West  Virginia,  and  in  Iowa, 
also,  unless  the  husband  had  an  illegitimate  child  living  at 
time  of  marriage.  Marriage  within  degrees  of  consanguinity 
is  invalid  without  more,  except  in  Florida,  Georgia,  Missis- 
sippi, Pennsylvania,  Virginia  and  New  Jersey :  and  in  such 
States  it  is  cause  for  divorce.  Marrying  female  under  age  of 
legal  consent,  without  consent  of  parents  or  guardian,  is 
ground  for  divorce  in  Arizona,  Delaware  and  Idaho ;  invalid 
in  most  other  States,  unless  confirmed  when  age  of  legal  con- 
sent is  attained.  Force  or  fraud  employed  in  obtaining  con- 
sent, ground  for  divorce  in  Arizona,  Connecticut,  Delaware, 
Georgia,  Idaho,  Kansas,  Kentucky,  Ohio,  Pennsylvania, Wash- 
ington ;  void  in  other  States.  Lunacy  or  idiocy ,  good  cause 
for  divorce  by  statute  in  the  District  of  Columbia,  Georgia, 
Mississippi,  Virginia  and  Wisconsin ;  it  is  ground  of  nullity 
on  general  principles  everywhere  else.  Vagrancy  is  a  statu- 
tory cause  for  divorce  in  Missouri.  "  Any  cause  which  renders 
cohabitation  impossible  "  is  ground  for  divorce  in  Washington. 
Uniting  with  any  society  which  discountenances  the  marriage 
relation  is  good  ground  in  Kentucky,  Massachusetts,  New 
Hampshire.  Gross  misbehavior  is  good  cause  in  Ehode  Island. 


104  MABKIAGE  AND  DIVOKCE. 

The  having  a  loathsome  disease  is  good  cause  in  Kentucky  for 
divorce. 

Long  continued  absences  afford  ground  for  divorce  in 
most  of  the  States,  ranging  from  two  to  seven  years.  In 
Louisiana  a  second  marriage  is  good  after  an  absence  of  the 
first  husband  for  ten  years ;  similarly  in  Arkansas  after  an 
absence  of  five  years.  In  California,  Idaho  and  Minnesota, 
such  second  marriage  is  good,  and  the  children  thereof  legiti- 
mate, till  annulled. 

CLASSIFICATION    OP   CAUSES    FOB    DIVORCE. 

Adultery. — Is  a  cause  everywhere. 

Cruelty  and  inhuman  treatment. — Everywhere  except  New 
York,  New  Jersey,  Virginia,  West  Virginia,  Maryland  and 
North  Carolina ;  in  Alabama,  Kentucky  and  Tennessee,  divorce 
lies  only  to  the  wife  for  this,  cause. 

Impotence,  physical  incapacity,  etc.,  at  time  of  marriage. — 
Everywhere  except  New  York,  Connecticut,  Vermont,  Iowa, 
Arizona,  Dakota,  Idaho,  California,  Louisiana,  Texas  and 
New  Mexico. 

Desertion,  abandonment  and  willful  absence. — All  except 
New  York  and  North  Carolina. 

Habitual  drunkenness. — Everywhere  except  New  York,Penn- 
sylvania,  New  Jersey,  Maryland,  Virginia,  West  Virginia, 
Texas,  North  Carolina  and  Vermont ;  when  wife  is  given  to 
intoxication,  Wisconsin. 

Conviction  of  felony. — Everywhere  except  New  York,  New 
Jersey,  Maine,  Maryland,  District  of  Columbia,  Florida,  New 
Mexico,  North  Carolina.  Where  husband  is  indicted  for  felony 
and  flees  the  State :  Virginia,  North  Carolina  and  Louisiana. 

Where  either  party  had  former  husband  or  wife  living. — 
Pennsylvania,  New  Jersey,  Ohio,  Tennessee,  Illinois,  Mis- 
souri, Kansas,  Mississippi,  Montana,  Colorado,  Arkansas, 
District  of  Columbia,  Florida. 

Disappearance. — Connecticut,  New  Hampshire,  Ehode 
Island,  Vermont. 


DIVORCE.  305 

Procurement  of  marriage  by  force,  fraud  or  duress. — Penn- 
sylvania, Ohio,  Connecticut,  Washington,  Georgia,  Kentucky, 
Kansas. 

When  husband  is  a  vagrant. — Missouri,  Wyoming. 

Attempt  by  either  party  on  the  life  of  the  other. — Illinois, 
Louisiana  and  Tennessee. 

Illicit  carnal  intercourse  of  wife  before  marriage. — Mary- 
land. 

Gross  neglect  of  duty. — Ohio  and  Kansas. 

Marriage  under  age  of  legal  consent. — Delaware. 

Insanity,  occurring  subsequent  to  marriage. — Arkansas. 

Joining  religious  sect  believing  marriage  unlawful. — Ken- 
tucky, Massachusetts,  New  Hampshire. 

Insanity  or  mental  incapacity  at  time  of  marriage. — 
Georgia,  Mississippi,  District  of  Columbia. 

Marriage  within  prohibited  degrees. — Pennsylvania,  New 
Jersey,  Georgia,  Florida,  Mississippi. 

Public  defamation, — Louisiana. 

Any  cause  rendering  the  marriage  originally  void. — Mary- 
land, Ehode  Island. 

Living  apart. — Kentucky,  Wisconsin. 

Incurable  chronic  mania,  or   dementia    for    ten   years. — 
Washington. 

Where  one  of  the  parties  has  obtained  divorce  elsewhere. — 
Florida,  Ohio  and  Michigan. 

Husband  notoriously  licentious  before  marriage. — West 
Virginia. 

Failure  or  neglect  of  husband  to  provide  for  wife. — Ehode 
Island,  Maine,  Massachusetts,  Arizona,  Wisconsin,  New 
Hampshire,  Wyoming,  Utah,  California,  Dakota,  Colorado, 
Delaware,  Idaho,  Nebraska,  Indiana,  Michigan,  Tennessee, 
Washington,  Nevada,  New  Mexico,  Yermont. 

Wife  a  prostitute  before  marriage. — Virginia, West  Virginia. 

Habitual  indulgence  in  violent  and  ungovernable  temper. — 
Florida. 


106  MARRIAGE  AND  DIVORCE. 

Intolerable  indignities. — Pennsylvania,  Tennessee,  Oregon, 
Arkansas,  Missouri,  Wyoming,  Washington. 

Conduct  rendering  it  unsafe  or  improper  to  cohabit  with 
husband. — Tennessee. 

Refusal  of  wife  to  removal  to  husband's  State. — Tennessee. 

Concealment  of  loathsome  disease  at  marriage. — Kentucky. 

When  either  party  become  impotent  since  marriage,  from 
excesses. — Colorado. 

Crime  against  nature. — Alabama. 

Lewd  and  lascivious  conduct  of  wife. — Kentucky. 

Pregnancy  of  wife  before  marriage. -Virginia,  West  Virginia, 
Georgia,  Alabama,  Iowa,  Kansas,  Missouri,  Kentucky,  Mis- 
sissippi, North  Carolina,  Tennessee,  Wyoming. 

Gross  misbehavior  in  violation  of  marriage  covenant. — 
Khode  Island. 

Where  husband  shall  turn  wife  out  of  doors. — Tennessee. 

Any  other  cause  deemed  by  the  court  sufficient,  and  when 
parties  can't  live  together. — Washington. 

SUMMARY    OF    CAUSES    FOR    LIMITED  DIVORCE. 

Adultery. — Ehode  Island,  Pennsylvania,  Kentucky,  Ala- 
bama, Louisiana  and  Arkansas. 

Lewd  and  lascivious  behavior  of  wife. — Kentucky. 

Pregnancy  of  wife  at  marriage,  unknown  to  husband. — 
Kentucky  and  Alabama. 

Procurement  of  marriage  by  force,  duress  or  fraud. — Ken- 
tucky. 

Gross  misbehavior  and  wickedness  in  violation  of  marriage 
contract. — Ehode  Island. 

Abandon,  desertion,  wilful  absence. — New  York,  Wisconsin, 
North  Carolina,  Virginia,  West  Virginia,  Pennsylvania, 
Tennessee,  Ehode  Island,  Alabama,  Arkansas,  Nebraska, Mary- 
land, Kentucky,  Michigan,  Louisiana,  Minnesota. 

Impotency,physicalincapacityexisimg  at  marriage. — Ehode 
Island,  Kentucky,  Alabama,  Arkansas. 

Attempt  by  one  party  upon  life  of  other. — Louisiana. 


DIVOECE.  107 

Concealment  of  loathsome  disease  existing  at  marriage. — 
Kentucky. 

Contracting  loath  some  disease  after  marriage. — Kentucky. 

When  either  party  had  a  former  husband  or  wife  living. — 
Arkansas. 

Procurement  of  marriage  when  either  party  was  under  age 
of  consent. — Delaware. 

Any  cause  rendering  marriage  originally  void  or  voidable. 
— Bhode  Island. 

When  either  party  has  joined  religious  sect  during  mar- 
riage.— Kentucky. 

Cruelty,  inhuman  treatment,  actual  violence  or  apprehension 
thereof. — Tennessee,  Wisconsin,  Virginia,  West  Virginia,  New 
York,  Ehode  Island,  New  Jersey,  North  Carolina,  Nebraska, 
Pennsylvania,  Louisiana,  Minnesota,  Kentucky,  Alabama, 
Maryland,  District  of  Columbia,  Michigan,  Arkansas,  Georgia. 

Indignities  rendering  condition  intolerable  or  life  insup- 
portable.— Pennsylvania,  North  Carolina,  Tennessee  and 
Arkansas. 

Conduct  rendering  it  unsafe  or  improper  for  parties  to 
cohabit. — New  York,  Minnesota,  Wisconsin  and  Tennessee. 

Conviction  of  felony  or  infamous  crime  :  imprisonment. — 
Khode  Island,  Kentucky,  Arkansas,  Louisiana. 

Insanity  occurring  after  marriage. — Arkansas. 

When  either  party  has  fled  from  justice. — Louisiana. 

Failure  or  neglect  of  Husband  to  provide  for  wife. — Khode 
Island,  New  York,  Delaware,  Tennessee,  Nebraska,  Wisconsin, 
Michigan,  Minnesota. 

Drunkenness. — Georgia,  Alabama,  Louisiana,  Kentucky, 
North  Carolina,  Arkansas,  West  Virginia,  Wisconsin,  Ehode 
Island. 

Where  one  party  shall  turn  the  other  out  of  doors. — 
Pennsylvania,  Tennessee  and  North  Carolina. 

Any  ground  which  was  held  sufficient  in  the  English 
courts  prior  to  May  4th,  1784. — -Georgia. 


108  MARRIAGE  AND  DIVORCE. 

Such  other  cause  as  the  court  may  deem  sufficient. — Ken- 
tucky. 

Such  other  cause  as  may  seem  to  require  divorce. — Khode 
Island. 

Disappearance  (absence,  creating  presumption  of  death). — 
Khode  Island. 

Living  apart  (voluntary  separation). — Kentucky. 

Public  defamation. — Louisiana. 

Excessively  vicious  conduct. — Maryland. 

Crime  against  nature. — Alabama. 

When  the  wife  shall  be  given  to  intoxication. — Wisconsin. 

The  age  of  legal  consent  has  been  radically  changed  in 
many  of  the  States  by  express  legislation.  In  New  Mexico, 
if  the  male  is  under  21,  or  the  female  under  18,  and  no  con- 
sent obtained,  the  marriage  is  void  ipso  facto.  In  Iowa,  North 
Carolina  and  Texas  the  age  of  legal  consent  is  16  for  a  male, 
and  14  for  a  female.  In  Alabama,  Arkansas,  Georgia  and 
Illinois  the  age  of  consent  is  17  for  a  male,  and  14  for  a 
female.  In  California,  Minnesota,  Oregon  and  Wisconsin,  18 
for  a  male,  and  15  for  a  female.  In  New  York,  Deleware, 
Michigan,  Nevada,  Nebraska  and  Ohio,  18  for  a  male,  and  16 
for  a  female. 

Abduction  of  a  female  with  a  view  to  an  enforced  mar- 
riage, is  a  grave  crime  everywhere. 

In  Arkansas,  where  it  is  least  to  be  expected,  they  have 
taken  advanced  (and  the  proper)  stand  on  the  subject  of 
crimes  against  the  female  sex,  by  making  the  punishment  for 
rape,  death,  and  by  also  making  this  enactment :  "Every 
person  who  shall  take  unlawfully  and  against  her  will  any 
woman,  and  by  force,  duress  or  menace  compel  her  to  marry 
him  or  to  marry  any  other  person,  or  to  be  denied,  shall 
suffer  death." 

THE    DOCTRINE    OP   ABSENCE. 

As  has  been  shown,  a  wilful  absence  of  a  party  from  his 
or  her  family  for  a  certain  period,  varying  in  different  States, 
is  a  valid  cause  of  divorce,  and  if  properly  obtained  in  the 


DIVORCE.  109 

place  of  the  genuine  and  permanent,  and  not  temporary  and 
fraudulent,  domicil,  and  legal  notice  given  or  due  publication 
made,  such  divorce  will  be  valid,  and  the  plaintiff  can  remarry 
at  any  time  after  the  procurement  of  such  decree,  and  this 
cause,  on  the  whole,  is  the  most  prolific  source  of  divorce  in 
its  practical  realization.  The  terms  "wilful,"  "malicious," 
or  "with  intent  to  desert"  or  "abandon,"  are  often  used  in 
express  terms,  and  are  always  implied.  Under  those  statutes 
no  extent  of  time  is  sufficient  to  constitute  legal  abandonment 
or  desertion,  unless  the  intention  to  abandon  exists.  A  man 
might  go  on  an  extended  tour  and  be  gone  beyond  the  time, 
but  it  would  not  be  technical  desertion  of  itself,  and  if  an 
attempt  should  be  made  to  secure  a  divorce  by  virtue  of  such 
absence,  the  court  must  be  satisfied  by  actual  or  presumptive 
proof  that  the  absence  was  wilful,  malicious,  or  designed  to 
be  permanent.  In  some  States  a  certain  term  of  unexplained 
absence  is  good  ground  for  divorce.  In  New  Hampshire,  if 
the  wife  lives  out  of  the  State  for  ten  years,  a  divorce  may  be 
decreed ;  so  if  the  husband  is  absent  from  the  State  for  three 
years ;  and,  in  addition,  wilful  absence  is  provided  for.  In 
Vermont,  absence  for  seven  years  is  good  cause.  In  Khode 
Island  divorce  is  authorized  for  such  absence  as  creates  a 
presumption  of  death  (seven  years).  In  Connecticut,  divorce 
allowed  for  seven  years'  absence.  In  Louisiana,  ten  years' 
absence  without  any  tidings  of  absentee,  authorizes  absolute 
divorce.  In  Colorado,  absence  from  State,  with  no  intention 
of  returning,  good  cause  for  divorce.  In  Washington  a  divorce 
is  authorized  for  any  cause  deemed  by  the  court  to  be 
sufficient,  etc.,  and  which  would  include  a  long  absence.  If 
a  party  leaves  his  family  and  remains  absent  for  a  sufficient 
time  to  justify  a  decree  for  desertion,  the  remaining  party 
can  usually  array  presumptive  proof  that  it  is  so,  and  obtain  a 
divorce ;  but  it  sometimes  occurs  that  a  wife  does  not  wish  to 
formally  obtain  a  divorce,  but  does  wish  to  marry  again ;  i.e., 
she  believes  her  first  husband  to  be  dead,  but  cherishes  his 
memory  too  fondly  to  ask  for  a  divorce.  In  such  cases,  she 


110  MARRIAGE  AND  DIVORCE. 

must  take  her  chances,  but  the  law  relieves  her  from  the 
penalties,  as  bigamy,  adultery,  etc.,  if  she  waits  a  certain 
length  of  time  and  then  remarries,  not  having  heard  from 
the  missing  husband  meanwhile.  In  Pennsylvaina  this  term 
is  two  years  if  the  death  of  the  former  husband  is  declared 
"upon  false  rumor,  in  appearance  well  founded,"  and  if 
the  former  husband  returns  and  finds  his  wife  again  married, 
he  may  obtain  a  divorce,  or  resume  relations  with  his  wife, 
and  annul  the  second  marriage.  In  New  Hampshire,  if  the 
husband  is  beyond  the  seas,  or  in  any  of  the  United  States, 
unheard  of,  or  if  the  first  marriage  was  made  while  under 
age  of  legal  consent,  the  time  is  three  years.  In  Iowa  the 
time  is  three  years  if  the  absent  party  is  beyond  the  sea,  or 
if  the  plaintiff  has  good  reason  to  believe  the  absent  one  to  be 
dead.  In  Arkansas,  if  the  absent  party  is  absent  from  the 
United  States  for  five  years,  or  if  the  absent  party  lives  out 
of  the  State,  without  being  known  to  be  alive,  for  five  years, 
a  subsequent  marriage  without  divorce  is  good.  In  Califor- 
nia and  Idaho,  if  the  absent  party  was  generally  reputed  and 
believed  to  be  dead,  five  years'  absence  is  sufficient.  In  the 
Dakotas,  if  the  absent  party  is  continually  absent  from  the 
United  States  for  five  years,  or  if  the  absent  one  was  generally 
reputed  and  supposed  to  be  dead,  or  if  the  absent  one  has 
been  sentenced  to  imprisonment  for  life,  five  years  is  sufficient. 
In  Delaware,  five  years  is  sufficient  if  the  party  absent  is, 
with  good  reason,  believed  to  be  dead.  In  Florida,  if  the 
absent  one  is  beyond  the  seas  for  five  years,  it  is  sufficient. 
In  Georgia,  five  years  is  sufficient,  if  no  information  has  been 
received  as  to  the  fate  of  the  absentee.  In  Iowa,  if  the  absent 
one  continually  remains  beyond  the  sea,  or  the  citizen  or  re- 
maining one  has  good  reason  to  believe  the  absent  one  to  be 
dead,  three  years'  absence  is  sufficient.  In  Michigan  and 
Washington  it  is  the  same,  but  five  years  is  required.  In 
Kansas,  five  years  is  sufficient,  if  the  missing  party  is  con- 
tinually absent  from  the  United  States,  or  if  the  former 
spouse  has  been  sentenced  to  imprisonment  and  hard  labor 


DIVOECE.  Ill 

for  life,  or  if  the  former  marriage  was  contracted  while  under 
the  age  of  consent.  .  In  Kentucky,  five  years  is  sufficient,  if 
the  former  marriage  was  contracted  while  under  the  age  of 
consent,  or  if  the  absent  party  continually  remained  beyond 
the  sea,  or  in  the  United  States,  unheard  of.  In  Minnesota, 
if  the  remaining  party  believes  the  absent  party  to  be  dead, 
five  years'  absence  suffices.  In  Mississippi,  five  years'  absence 
suffices,  if  the  absent  party  is  continually  beyond  the  United 
States.  In  Nebraska,  five  years'  absence  is  sufficient,  if  the 
absence  was  wilful  and  continuous.  In  New  Jersey,  five 
years'  absence  is  sufficient,  if  the  missing  party  is  con- 
tinuously absent  from  the  United  States,  or  if  the  former 
marriage  was  contracted  while  under  the  age  of  consent.  In 
New  York,  five  years'  absence  is  sufficient,  if  the  absent  party 
is  continuously  absent,  or  if  the  former  spouse  was  sentenced 
to  imprisonment  for  life.  In  Tennessee,  if  the  absent  party 
has  been  absent  five  years,  and  not  known  to  the  other  to  be 
living,  or  if  the  remaining  party  has  good  reason  to  believe 
the  missing  party  to  be  dead  for  five  years,  or  if  the  absent 
party  continuously  remains  beyond  the  United  States  for  five 
years,  it  is  sufficient,  but  if  the  absent  one  returns  he  may 
either  resume  the  married  state  or  get  a  divorce,  at  his 
election.  In  Texas,  five  years'  absence,  unheard  of,  or  five 
years  remaining  out  of  the  State,  is  sufficient.  In  Alabama, 
Arizona,  Colorado,  Illinois,  Montana,  Nevada,  New  Mexico, 
Ohio,  Utah,  and  Wyoming,  five  years*  absence,  unheard  of, 
will  justify  the  remaining  spouse  to  remarry,  subject,  of 
course,  to  the  contingency  of  its  being  null  if  the  first  husband 
should  return. 

In  Massachusetts,  if  no  information  has  been  received  of 
the  fate  of  the  absentee,  seven  years'  absence  is  sufficient.  In 
Missouri,  if  the  former  marriage  was  contracted  while  under 
the  age  of  consent,  or  if  the  absent  party  was  continually 
absent  from  the  United  States  for  seven  years,  or  if  the  for- 
mer spouse  has  been  sentenced  to  imprisonment  for  life, 
seven  years'  absence  is  sufficient.  In  Ehode  Island,  if  the 


112  MARRIAGE  AND  DIVORCE. 

former  marriage  was  contracted  while  under  the  legal  age  of 
consent,  or  if  the  absent  party  is  beyond  the  limits  of  the 
State,  seven  years'  absence  is  sufficient.  In  South  Carolina, 
after  the  seven  years'  absence  of  one  spouse,  or  that  he  or 
she  has  been  sentenced  to  imprisonment  for  life,  or  the  for- 
mer marriage  was  contracted  while  under  the  age  of  legal 
consent,  or  if  the  missing  party  was  absent  from  the  United 
States  for  seven  years,  it  is  sufficient,  and  a  subsequent  mar- 
riage contracted  is  valid.  In  Vermont,  seven  years'  absence 
unheard  of,  or  the  missing  party  remaining  beyond  seas  or 
beyond  the  limits  of  the  State  for  seven  years,  or  if  the  for- 
mer marriage  was  contracted  while  under  the  age  of  consent 
and  not  afterward  ratified,  the  seven  years'  absence  will  suf- 
fice. In  Wisconsin,  seven  years'  absence  unheard  of,  or  if 
absent  party  is  continually  beyond  the  sea  for  that  period,  it 
will  suffice ;  and  in  Maine,  North  Carolina,  Oregon,  Virginia, 
and  West  Virginia,  seven  years'  absence,  unheard  of,  or  not 
known  to  be  living  is,  sufficient,  without  qualifications  of  any 
kind. 

The  above  are  cumulative,  and  are  not  designed  to  abridge, 
alter  or  impair  any  other  provisions.  Except  as  qualified,  the 
absence  must  be  coupled  with  the  fact  of  no  information 
meanwhile  of  the  absent  party ;  and  also  with  the  contingency 
of  the  missing  one  returning  to  claim  his  marital  rights.  In 
some  States,  as  I  have  shown,  the  subsequent  marriage 
invalidates  the  prior  one  ipso  facto ;  in  two  States,  it  is  op- 
tional with  the  returning  spouse  to  dissolve  or  restore  it.  In 
Louisiana  it  is  discretionary  with  the  court  to  validate  the 
second  marriage.  But  unless  otherwise  qualified  or  pro- 
vided, the  first  husband  has  all  the  responsibilities  and  bene- 
fits of  wedlock ;  he  may  not  marry  again  under  the  penalty  of 
bigamy ;  he  will  be  liable  as  ever  for  the  support  of  his  wife, 
and  for  such  children  of  the  second  marriage  as  need  a 
mother's  care.  He  could  require  his  wife  to  come  and  live 
with  him,  and,  if  she  refused,  it  would  be  desertion ;  she 
could  demand  a  home  at  his  hands  and  the  law  would  visit 


DIVOKCE.  113 

Mm  with  the  penalty  of  failure  to  support,  should  he  refuse, 
or  desertion,  according  to  the  local  law.  As  a  rule,  the  chil- 
dren of  the  second  marriage  would  not  be  illegitimate,  but 
would  be  the  legitimate  children  of  the  wife  and  the  second 
husband.  This  is,  however,  by  force  of  statute,  which  usually 
provide  that  such  children  are  legitimate,  if  begotten  while 
the  mother  deemed  her  first  husband  to  be  dead.  Such  chil- 
dren would  be  heirs  to  the  second  husband  and  the  wife,  but 
not  to  the  first  husband.  Of  course,  after  resumption  of  the 
marriage  relation  by  the  rightful  husband,  the  second  husband 
has  no  further  interest  in  the  wife,  and  should  he  embrace 
her  sexually,  it  would  be  adultery  in  them  both.  The  first 
husband  might  be  under  obligation  to  provide  for  the  chil- 
dren of  the  second  marriage  while  they  were  of  tender  years, 
if  the  second  husband  was  not  able  to  do  it,  but  he  could  ex- 
clude them  after  they  became  old  enough  to  maintain  them- 
selves. The  mother  would  not  be  justified  in  turning  them 
out  to  starve,  and  her  husband  must  maintain,  not  only  her, 
but  those  whom  the  law  compelled  her  to  support.  She  would 
have  no  further  right  in  the  second  husband  or  his  property 
— would  have  no  alimony  or  dower — and,  if  the  first  husband 
should  die,  a  new  marriage  would  be  necessary  before  she 
and  the  second  husband  could  live  together  again. 

As  I  have  said,  if  the  above  requisitions  were  complied 
with,  the  wife  would  not  be  guilty  of  bigamy,  not  even  if  she 
continued  to  live  with  the  second  husband  after  the  return  of 
the  first,  unless  after  such  return  she  remarried  her  second  hus- 
band, but  her  continuance  of  cohabitation  with  the  second 
would  be  a  living  in  adultery  together.  The  second  husband 
would  need  no  divorce  on  the  return  of  the  first,  as  his  return 
and  resumption  of  the  married  relation  would  annul  his  mar- 
riage ipso  facto.  If,  however,  the  first  husband  should,  in 
the  two  States  where  he  was  allowed  to,  elect  to  secure  a  di- 
vorce, the  second  marriage  would  be  valid  without  a  new  cere- 
mony. 

The    first  husband    could   not   punish  his   wife  in  any 


114  MABRIAGE  AND  DIVORCE. 

way  for  adultery,  nor  make  it  a  cause  of  divorce,  by  reason 
of  her  alliance  with  the  second  husband,  but  if  the  connec- 
tion continued,  both  might  be  prosecuted  for  adultery,  and 
the  first  husband,  if  he  did  not  connive  at  it,  could  also  main- 
tain a  civil  suit  for  damage. 

There  are  more  cases  of  this  kind  than  the  world  knows  of. 
It  is  not  altogether  rare  for  men  to  abandon  their  wives,  and 
after  a  long  absence,  return ;  and  I  have  known  of  singular 
complications  to  arise.  The  law-makers,  however,  have 
seemed  to  make  all  the  provisions  needful  to  meet  such  cases, 
but  the  melodramas  of  such  situations  cannot  be  shorn  of 
their  heart-rending  or  bitter  phases,  by  law.  The  allowing  of 
the  absent  one  to  resume  or  withdraw  at  his  election  seems 
unjust.  As  he  or  she  was  originally  to  blame,  the  constant 
and  remaining  one  should  have  the  election,  if  either. 

ADULTERY, 

Adultery  is  the  voluntary  sexual  intercourse  of  a  married 
person  with  a  person  other  than  the  offender's  husband  or 
wife :  or,  it  is  "sexual  connection  between  a  married  woman 
and  an  unmarried  man,  or  a  married  man  other  than 
her  own  husband;"  or,  "unlawful,  voluntary  sexual  in- 
tercourse between  two  persons,  one  of  whom,  at  least,  is  mar- 
ried," is  the  essence  of  the  crime,  in  all  cases.  In  general,  it 
is  sufficient  if  either  party  is  married,  and  the  crime  of  the 
married  party  will  be  adultery,  while  that  of  the  unmarried 
party  will  be  fornication.  "By  the  civil  law,  adultery  could 
only  be  committed  by  the  unlawful  sexual  intercourse  of  a 
man  with  a  married  woman.  Thus,  as  stated  in  Wood's  In- 
stitute, 272,  adultery  is  a  carnal  knowledge  of  another  man's 
wife,  and  the  connection  of  a  married  man  with  a  single 
woman,  does  not  make  him  guilty  of  the  crime  of  adultery."1 

"  Strictly,  adultery  consists  in  carnal  connection  with  an- 
other man's  wife.  Such  an  act  is  adultery  and  not  fornica- 
tion (2  Blackf.,  318),  and  the  sexual  intercourse  of  any  man 

i  6  Mete.,  243.  36  Me.,  261.  11  Ga.,  56.  56Ind.,  271.  35  Me..  205.  27  Ala.. 
N.  S.,  23.  5  Jones  N.  C.,  416.  1  Yeates,  6.  2  Dall.,  124.  7  Gratt.,  591.  21  Pick, 
509. 


DIVORCE.  115 

with  a  married  woman  is  adultery  in  both,  and  the  intercourse 
of  a  married  man  with  an  unmarried  woman  is  fornication  in 
both.  There  never  was  an  action  for  adultery  known  to  be 
maintained  at  the  common  law  by  any  but  the  husband, 
showing  that  the  offense  cannot  possibly  be  committed  with 
any  other  than  a  married  woman.  The  heiniousness  of  it  con- 
sists in  exposing  an  innocent  husband  to  maintain  another 
man's  children,  and  having  them  succeed  to  his  inheritance. 
This  is  the  common  law  doctrine  of  adultery.  *  * 1  But 
in  this  country  no  such  distinction  is  made  by  the  statutes 
between  adultery  by  the  husband,  and  adultery  by  the  wife.2 
This  is  the  most  prolific  cause  for  divorce.  It  was  and  is  a 
canonical  cause,  and  is  the  only  cause  authorized  for  moral 
delinquency  in  severe  jurisdictions.  It  is  the  universally  ac- 
cepted unpardonable  marital  sin.  Its  definition,  as  applied 
in  American  courts,  is  the  voluntary  indulgence  by  a  married 
person  of  the  sexual  act  with  a  person  of  the  opposite  sex, 
other  than  the  husband  or  wife  of  the  offender.  It  is,  there- 
fore, not  adultery  when  the  act  is  enforced,  as  by  a  rape, 
when  the  subject  is  drugged  into  unconsciousness,  or  when  a 
person  is  mistaken  in  a  person,  supposing  the  co-operating 
party  to  be  the  lawful  partner,  whichjnight  happen  in  the 
dark ;  nor  is  the  crime  of  sodomy,  legal  adultery,  inasmuch 
as  ^uch  act  of  commerce  was  not  with  a  person  of  the  op- 
posite eex,  as  a  rule. 

As  this  is  a  serious  marital  crime,  presumptions  of  guilt 
will  not  lie  except  upon  substantial  proof  by  circumstances. 
The  presumption  of  innocence  requires  strong  circumstances 
to  overcome.  All  married  persons  are  under  an  oath  of  con- 
tinence, and  while  there  may  be  many  innocent  acts  of  flir- 
tation and  license,  it  would  be  uncharitable  and  misleading 
to  infer  guilt  therefrom ;  and  courts  are  very  cautious  and  par- 
ticular to  make  no  mistake  in  that  particular.  Yet  this 
crime  is  rarely  proven  otherwise;  offending  parties  ex- 
clude witnesses,  as  an  almost  inevitable  rule.  The  visits  of  a 

1  56  Ind.,  272.    1  Harrison,  380.    2  Rapalje  &  Lawrence  Law  Diet. 


116  MAERIAGE  AND  DIVORCE 

married  person  of  either  sex  to  a  brothel  or  assignation  house, 
unexplained,  creates  a  presumption  of  adultery,  although  the 
doctrine  is  not  without  some  opposition.  Evidence  of  famili- 
arity between  a  married  person  and  one  of  another  sex  is 
competent  as  tending  to  show  adultery,  and  no  rule  can  be 
laid  down  of  absolute  precision  as  a  guide.  The  evidence  of 
children,  servants,  detectives,  and  the  particeps  criminis  is 
competent,  although  that  of  the  two  latter  is  taken  cum  sails 
grano;  in  fact,  I  have  known  of  judges  to  refuse  to  hear  either 
of  the  two  latter  classes.  In  a  charge  of  adultery  on  the 
part  of  a  wife,  evidence  of  her  indiscretions  with  other  men, 
is  competent  to  illustrate  the  main  issue.1  And  in  adultery 
charged  on  the  part  of  the  husband,  evidence  of  visits  to  other 
houses  of  ill-fame  than  the  one  charged,  is  admissible.2  Some 
strange  conflicts  of  law  have  occurred  from  the  many  diverse 
rulings  of  the  various  courts  in  reference  to  this  matter.  It 
has  been  held  that  a  person  who  fraudulently  procures  a  di- 
vorce in  a  foreign  jurisdiction,  and  then  marries,  and  returns 
to  his  original  domicil,  is  guilty  of  adultery,  notwithstand- 
ing the  validity  of  the  second  marriage.  So  far  as  the  right 
of  the  first  to  a  divorce  upon  that  ground  is  concerned, 
a  confession  of  adultery,  if  there  is  no  collusion,  is  good  in 
evidence.  Under  the  English  law,  as  it  was  originally  ad- 
ministered, adultery  and  cruelty  were  the  only  causes  for  di- 
vorce.3 The  Savior  allowed  of  divorce  for  adultery,  but  the 
Eoman  church  don't  allow  of  divorce  at  all.  In  some  States 
the  wife's  adultery  is  considered  the  graver  offense.  In  Ken- 
tucky, lewd  and  lascivious  conduct  and  behavior  on  the  part 
of  a  wife,  may  be  held  as  tantamount  to  adultery. 

Rhode  Island  and  Iowa. — It  has  been  held  that  an  insane 
person  cannot  commit  adultery,  the  animus  being  wanting. 
In  pleading  the  commission  of  adultery,  the  time,  place  and 
person  with  whom,  must  be  stated  as  definitely  as  can  be.  A 
motion  to  make  more  definite  and  certain,  or  for  a  specific 
bill  of  particulars  will  be  allowed,  if  not  done ;  likewise  a  new 

1  2  N.  Y.  S.,  89.  8  N.  Y.  S.,  47.  54  Hun.,  490.   2  9  N.  Y.  S-,  583.  3  42  Hun.,  524. 


DIVOKCE.  117 

trial  might   be  granted  on  ground  of  surprise.     It  is  always 
salutary   and   a  good  practice  to  state  the  case  in  this  respect 
as  plainly  as  can  be  done.     It  is  not  technical  libel  to  name 
a  co-respondent  or  particeps  criminis,  unless  it  is  clearly  ground- 
less and  malicious.     It  is  usual  also  to  add,  as  a  formal  allega- 
tion, "that  tho   defendant  did  likewise  commit  divers  other 
acts  of  adultery  with  some  other  persons  or  persons,  and  at 
divers  other  times  and  places  to  your  orator  unknown :"  and, 
under  such  allegation,  other  instances  may  be  shown.     An 
insane  person  cannot  commit  legal  adultery,  but  a  sane  per- 
son may  be  guilty  of  adultery  with  a  lunatic,  slave,  or  child ; 
it  must  simply  be  a  human  person  of  the  opposite  sex.     * 
*     *     "Whatever  convinces  the  judge  or  jury  of  the  consum- 
mation of  the  act  (adultery)  will  be  sufficient  for  their  purpose. 
It  is  a  fundamental  rule  that  it  is  not  necessary  to  prove  the 
direct  act  of  adultery,  because  if  it  were  otherwise  there  is  not 
one  case  in  a  hundred  in  which  that  proof  would  be  attain- 
able ;  it  is  very  rarely  indeed  that  the  parties  are  surprised  in 
the  direct  fact  of  adultery.     In  every  case  almost,  the  fact  is 
inferred  from  circumstances  that  lead  to  it  by  fair  inference, 
as  a  necessary  conclusion,  and  unless  this  were  the  case,  and 
unless  this   were  so  held,   no  protection  whatever  could  be 
given  to  marital  rights.  *     What   are  the  circumstances  that 
lead  to  such  a  conclusion  cannot  be    laid  down   universally, 
because  they  may  be  infinitely  diversified  by  the  situation  and 
character  of  the  parties,  the  state  of  general  manners  and  by 
many  other  incidental   circumstances,  apparently  slight  and 
delicate  in  themselves,  but  which   may  have  most  important 
bearings  in  decision   upon  the  particular   case.     The   only 
general  rule  that  can  be  laid  down  upon  the  subject  is  that 
the  circumstances  must  be  such  as  would  lead  the  guarded 
discretion  of  a  reasonable   and  just  man  to  the  conclusion. 
The  plaintiff's  husband  has  been  permitted  to  prove  that  the 
conduct  of  his  wife,  during  his  absence,  was  so  indeoorous  as 
to  induce  a  lady  with  whom  she  resided  to  recommend  her  re- 

1  2  Greenl.  on  Ev.  35,  37.    2  Phil,  on  Ev.  211.     2  Hag.  Consist,  page  2. 


118  MAKBIAGE  AND  DIVORCE. 

moval  to  her  mother. l  The  fact  of  adultery  is  to  be  infer- 
red from  circumstances  that  naturally  lead  to  it  by  a  fair  in- 
ference as  a  necessary  conclusion.  The  direct  fact  of  adul- 
tery can  seldom,  if  ever,  be  proved. 2 

*  *  *  Courts  and  juries  are  compelled  to  determine  the 
question  from  the  behavior  of  the  parties  and  from  a  great 
variety  of  circumstances,  either  of  which,  when  considered 
alone,  would  be  insufficient  to  prove  *  *  *  the  charge, 
but,  when  considered  together,  may  be,  and  frequently  are, 
amply  sufficient  to  establish  the  offence.  3  It,  like  all  other 
charges,  may  be  established  by  circumstantial  evidence ;  and 
the  evidence  need  only,  when  considered  together,  convince 
the  mind  that  the  charge  is  true.  *  *  *  The  circum- 
stances must  be  such  as  would  lead  the  guarded  discretion  of 
a  reasonable  and  just  man  to  the  conclusion. 4 

A  confession  of  adultery  written  by  the  wife  in  the  pres- 
ence of,  and  under  the  eye  of,  the  husband  is  presumed  to  be 
procured  by  his  coercion,  and  is  not  a  safe  basis  upon  which 
to  build  up  and  support  a  charge  of  adultery  against  the  wife.5 
Boastful  admissions  by  defendant  of  adultery — held,  insuf- 
ficient to  justify  a  divorce.6  A  married  man  going  to  a 
brothel  is  presumptive  of  adultery,  but  is  not  conclusive,  and 
may  be  explained.  7  A  divorce  will  not  be  granted  for  the 
adultery  of  the  wife  committed  through  the  husband's  pro- 
curement. 8 

CRUELTY. 

This  was  a  twin  cause  of  divorce,  by  the  English  law,  with 
adultery.  The  degrees  of  cruelty,  authorizing  divorce  by  our 
American  courts,  are  almost  infinite.  Even  the  disparity  of 
definitions  of  legal  cruelty  in  the  American  statutes  is  very 
wide,  some  requiring  harsh,  brutal,  bodily  injury,  long  con- 
tinued, while  others  are  content  with  harsh  treatment  which 
causes  mental  anguish.  A  reference  to  the  statutory  causes 

i  3  Hagg.  Ecc.  310.  2  82  111.  584.  3  64  111.  333.  1  Edw.  Chy.  14.  Port  467. 
*  3  Green  Chy.  444.  1  C.  E.  Green.  122.  3  Sandf.  307.  5  Iowa  204.  6  Law 
B.  141.  5  37  N.  J.  Eq.  603,  6  62  Iowa  82.  1  Green  Ch.  139.  7  Walker  Chy.  48. 
4  Porter  467.  8  30  Gratt.  307.  3  Pick.  299.  51  111.  162. 


DIVORCE. 

will  render  this  apparent.  So  far  as  the  ordinary  cruelty 
could  be  denned,  it  was  done  by  Sir  William  Scott  negatively, 
thus,  and  which  has  been  followed  by  courts  constantly  since : 
"Mere  austerity  of  temper,  petulance  of  manners,  rudeness 
of  language,  want  of  civil  attention  and  accommodation,  even 
occasional  sallies  of  passion,  if  they  do  not  threaten  bodily 
harm,  do  not  amount  to  legal  cruelty.  They  are  high  moral 
offenses  in  the  marriage  state,  but  still  do  not  amount  to  that 
cruelty  against  which  the  law  can  relieve."1  The  Illinois 
courts  in  the  case  of  Vignos,  15  111.,  186,  required  very  sub- 
stantial acts  of  cruelty  to  fulfill  the  design  contemplated  by  the 
statute.2  But  under  the  same  statute,  the  court,  some  years 
later,  in  Farnhara,  73  111.,  497,  "roared  as  gently  as  a  cooing 
dove,"3  thus  showing  the  instability  of  the  law,  when  guided 
by  sympathies.  No  rule  could  be  laid  down  on  this  subject. 
The  courts  have  ventured  many  definitions,  but  they  will 
afford  no  apt  rule  for  future  cases — it  will  depend  chiefly  on 
the  quality  of  judge  one  has  to  deal  with.  When  a  wife  is 
ill,  it  is  cruelty  to  neglect  her  and  treat  her  in  a  harsh  and 
imperious  manner.  It  is  also  cruelty  to  bestow  a  venereal 
disease  upon  her.4  It  has  been  held  to  be  cruelty  in  a  wife 
to  entrap  a  husband  to  commit  adultery.5  A  false  and  un- 
founded accusation  of  adultery  to  the  wife  has  frequently 
been  held  to  be  cruelty.6  Insisting  upon  coition  with  sick 
wife  and  using  violence,  and  writing  coarse  letters  to  her,  con- 
stitute good  cause  of  divorce  by  reason  of  cruelty,7  but  com- 
pelling wife,  not  ill,  to  sexual  embrace,  is  not  cruelty.8  Aliter 
in  a  Michigan  case.9  A  refusal  of  wife  to  sexual  act  no  cause 
or  excuse  for  cruelty.10  Nor  is  it  legal  cruelty  to  so  cohabit. 
A  vulgar  husband  was  wont  to  practice  masturbation  in  pres- 
ence of  his  wife,  but  did  not  compel  her  to  remain — held,  not 
cruelty.11  A  husband  may  press  his  wife  to  such  a  degree  of 
sexual  intercourse  as  to  make  it'cruelty,  but  it  would  require 
a  great  deal.  I  had  one  such  case,  but  the  husband  had 

1  67  How.  Pr.,  20.  85  Cal.  251 .  7  So.  Rep.,  864.  2  15  111.,  186.  3  73  111.,  497,  56 
Mich.,  50.  32  N.  J.  Eq.,  475.  *  17  Abb.  Pr.,  231.  6  17  Abb.  Pr.,  236.  6  15  Ore.,  626. 
67  Tex.,  198.  7  33  Kan.,  11.  18  Nov.,  49.  62  Tex.  518.  61  [Mich.,  554.  8  17  Conn., 
189.  33  111.  App.,  223.  9  61  Mich.,  554.  10  2  Brews.,  211.  "  141  Mass.,  495. 


120  MARRIAGE  AND  DIVORCE. 

erotic  mania.  Throwing  water  in  face  or  spitting  in  face, 
legal  cruelty.1  Whipping  wife,  cruelty,  but  she  must  not  pro- 
voke such  treatment.  It  has  been  held  in  many  cases  that 
mental  torture  might  be  of  so  aggravated  a  character  as  to 
amount  to  cruelty,  with  a  mere  trifle  of  physical  ill-treat- 
ment.2 

Lord  Stowell  says :  "The  definition  of  legal  cruelty  is  that 
which  may  endanger  the  life  or  health  of  the  party.  It  gen- 
erally proceeds  from  the  wife  as  the  weaker  person,  but  it 
may  come  from  the  man,  and  has  done  so  in  several  cases, 
but  generally  the  wife  complains  of  what  is  dangerous  to  her, 
on  the  showing  of  which  the  court  releases  her  from  cohab- 
itation."3 

It  is  for  witnesses  to  state  the  facts,  and  the  court 
will  then  determine  whether  it  amounts  to  cruelty,  and  the 
jury  will  determine  if  it  occurred.  The  time  was  in  England 
when  the  husband  could  whip  his  wife  with  a  stick  not  larger 
than  his  thumb,  but  courts  are  adjudging  less  and  less  abuse 
to  be  cruelty.  Cruelty  is  conduct  which  endangers  the  life  or 
health  of  complainant  and  renders  cohabitation  unsafe  and 
intolerable.  To  constitute  legal  cruelty,  there  must  be  good 
ground  to  apprehend  danger  to  life,  limb  or  health.  There 
must  be  a  reasonable  apprehension  of  bodily  hurt.4 

Words  of  menace  intimating  a  malignant  intention  of 
doing  bodily  harm  and  even  affecting  the  security  of  life,  are 
legal  cruelty.5  The  court  is  not  to  wait  till  the  threats  are 
carried  into  execution,  but  is  to  interpose  when  the  words 
are  such  as  might  raise  a  reasonable  apprehension  of 
violence,  and  excite  such  fear  and  terror  as  make  the  life 
of  the  wife  intolerable. 

Cruel  treatment  does  not  always  consist  of  actual  vio- 
lence. There  are  words  of  false  accusation  that  inflict 
deeper  anguish  than  physical  injuries  to  the  person — more 
enduring  and  lacerating  to  the  wounded  spirit  of  a  gentle 

1  31  Iowa,  451.  2  76  Ga.,  319.  18  Nev.,  49.  23  Fla.,  324.  30  Gratt.,  307.  23 
la.,  433.  8  2  Phillim.  132.  «  2  Paige,  501.  36  Ga.,  286.  4  Wis.,  135.  5  1  Haj?g. 
Ecc.  B.,  773.  1  Edw..  278. 


DIVOKCE.  121 

woman,  than  actual  violence  to  the  person,  though  severe.1 
Words  of  abuse  and  reproach  create  only  resentment  and  are 
not  legal  cruelty.  Even  a  threat  of  violence,  when  none  is 
offered,  does  not  constitute  a  sufficient  ground  for  divorce.2 
The  charge  of  cruelty  must  be  sustained  by  grave  and 
weighty  facts  which  show  that  the  duties  of  the  married  life 
cannot  be  discharged.3  Tantalizing  language  on  the  part  of 
the  husband,  supplying  his  wife  with  scanty  clothing  when 
his  means  are  ample,  and  other  acts  of  meanness,  will  not 
sustain  the  charge.  Smashing  dishes,  using  grossly  improper 
language,  and  threats  to  kick  from  the  house,  are  insufficient 
to  establish  a  charge  of  cruelty  as  ground  of  divorce.4  Pull- 
ing or  twisting  a  wife's  nose  in  a  harsh  and  vulgar  manner, 
when  done  but  once,  does  not  constitute  cruelty  in  the  sense 
that  the  wife's  life  is  thereby  rendered  burdensome  and  intol- 
erable.5 

Cruelty  may  be  said  generally  to  be  when  the  husband 
has  so  treated  his  wife,  and  manifested  such  feelings  toward 
her,  as  to  have  inflicted  bodily  injury,  to  have  caused  reason- 
able apprehension  of  bodily  suffering,  or  to  have  injured 
health.6  To  sustain  a  bill  *  *  it  is  not  sufficient  to  show  a 
single  act  of  violence  on  the  wife's  part,  or  eveji  a  series  of 
acts ;  he  must  establish  such  a  continued  course  of  bad  con- 
duct on  the  part  of  the  wife  toward  himself  and  and  those 
under  his  care  and  protection  as  to  satisfy  the  court  that  it  is 
unsafe  for  him  to  cohabit  or  to  live  with  her.  Hence,  it  is 
proper  to  set  forth  acts  of  violence  and  misconduct  toward 
the  complainant,  children,  visitors  and  servants.7  Duress  or 
threats,  tending  to  injury  to  health,  or  terrifying  a  wife  into 
immorality,  publicly  outraging  a  wife's  feelings  by  insulting 
language  and  assaulting  her,  even  though  no  personal  injury 
be  inflicted ;  a  violently  intended  but  futile  assault,  or  spitting 
on  a  wife ;  habitual  insult  and  violence  of  temper,  inducing 
quarrels  and  producing  physical  suffering ;  knowingly  or  reck- 

1  73  111.,  500.    2  1  Hags.  Ecc.,  773.  2  Sneed,  716.    3  4  Wla.,  135.    4  24  N.  J.  Bq., 
33    5  37  Pa.  St.,  225.    6  1  Sw.  &  Tr.,  168.     7  1  Barb.  Chy.  516. 


122  MARKIAGE  AND  DIVOECE. 

lessly  imparting  a  venereal  disease ;  unreasonable  denial  of 
usual  necessaries  and  comforts,  so  as  to  affect  health1; 
cruelty  to  children  in  the  mother's  presence,  in  order  to  wound 
her  feelings,  and  to  such  an  extent  as  probably  to  be  injuri- 
ous to  her  health.2  Menaced  violence,  such  as  threatening 
to  cut  an  arm  off,  or  to  run  the  body  through  with  a  red-hot 
poker,  while  at  the  same  time  brandishing  it,  and  other  ex- 
hibitions of  passion  which  might  terminate  in  actual  violence, 
are  sufficient  to  found  a  case  of  legal  cruelty.2  It  is  conduct 
which  endangers  the  life  or  health  of  complainant,  and 
renders  cohabitation  unsafe.  Court  must  determine  what 
conduct  is  cruelty,  and  the  jury  must  decide  if  it  took  place.3 

It  has  been  held-  that  cohabitation  does  not  imply  any 
condonation  for  acts  of  cruelty.  As  cruelty  usually  proceeds 
from  the  male  to  the  female,  the  presumption  is  that  a  wife 
would  yield  her  person  to  a  cruel  husband  on  demand,  or  even 
voluntarily,  to  avert  acts  of  cruelty,  rather  than  that  she  had, 
by  such  acts,  condoned  the  cruelty.4  An  utter  refusal  of  the 
husband  to  have  sexual  intercourse  with  the  wife,  held  not  to 
be  cruelty ;  in  such  case,  in  the  absence  of  an  express  statute, 
there  seems  to  be  no  relief,  although  some  courts  might  con- 
strue it  to  be  desertion.6  A  husband  who  unreasonably  and 
forcibly  effects  sexual  intercourse  with  his  wife,  to  the  injury 
of  her  health  when  he  knows  the  injury  and  suffering  it  will 
inflict  on  her,  is  guilty  of  intolerable  cruelty,  such  as  will 
authorize  a  divorce.6 

Cruelty  is  usually  manifested  in  physical  acts,  but  not 
always,  but  conduct  sufficient  to  create  a  reasonable  appre- 
hension of  physical  violence  is  enough. 

The  law  has  been  thus  variously  stated :  Judge  Cress- 
well  stated  it  to  the  jury  thus :  "It  will  be  for  you,  on  a  con- 
sideration of  the  evidence  you  have  heard,  to  determine 
whether  the  husband  has  so  treated  his  wife,  and  so  mani- 
fested his  feelings  toward  her,  as  to  have  inflicted  bodily 

1  21  L.  T.  564.  L.  J.  P.  <fe  M.  37.  2  2  Add.  382.  3  N.  C.  340.  1  Add.  Ecc.  29. 
8  2  J.  J.  Marsh,  322.  11  Ala.  620.  22  Gal.  358.  4  19  111.  344.  2  Paige.  108.  1  Rob. 
634.  6  Mass.  69.  9  Barr.  449.  6  23  Pa.  St.  343.  2  Brews.  Pa.  511.  6  17  Conn.  189.  58 
N.  H.  569. 


DIVOKCE.  123 

injury,  to  have  caused  reasonable  apprehension  of  bodily 
suffering,  or  to  have  injured  health. " 

One  of  our  own  judges  defined  it  "  to  be  such  conduct  on 
the  part  of  the  husband  as  will  endanger  the  life,  limb 
or  health  of  the  wife,  or  create  a  reasonable  apprehension  of 
bodily  hurt.  What  must  be  the  extent  of  the  injury,  or 
what  particular  acts  will  create  a  reasonable  apprehension  of 
personal  injury,  will  depend  upon  the  circumstances  of  each 
case."  In  Illinois  it  was  held  that  "extreme  and  repeated 
cruelty"  was  sufficiently  shown  by  two  blows  given  in  anger, 
coupled  with  the  fact  that  he  "applied  to  his  wife,  not  only  in 
their  private  room,  but  in  the  presence  of  strangers,"  abusive 
language.  This  requirement  is  not  sufficiently  fulfilled  by  an 
alienation  of  affections.  In  some  States  it  has  been  held 
that  threats  coupled  with  a  present  ability  and  apparent 
purpose  to  carry  them  into  effect  are  sufficient ;  unfounded 
accusations  of  adultery  and  other  malignant  abuse,  joined  to 
slight  acts  of  violence,  are  sometimes  sufficient.  In  the  case 
of  Bailey  vs.  Bailey,  97  Mass.,  373,  under  a  statute  where 
the  delictum  was  "extreme  cruelty,"  court  said:  "Where  a 
divorce  is  sought  on  the  ground  of  cruelty,  whether  it  be 
cruel  and  abusive  treatment,  or  cruelty  in  neglecting  or  refus- 
ing to  provide  suitable  maintenance  for  the  wife,  a  reasonable 
construction  of  the  statute  requires  that  it  shall  appear  t  o  be 
at  least,  such  cruelty  as  shall  cause  injury  to  life,  limb  or 
health,  or  create  a  danger  of  such  injury,  or  a  reasonable 
apprehension  of  such  danger  upon  the  parties  continuing  to 
live  together.  This  is  broad  enough  to  include  mere  words, 
if  they  create  a  reasonable  apprehension  of  personal  violence, 
tend  to  wound  the  feelings  to  such  a  degree  as  to  affect  the 
health  of  the  party,  or  create  a  reasona  ble  apprehension  that 
it  may  be  affected." 

Insulting  and  degrading  language  used  by  a  husband  to 
his  wife  is  not  ground  for  a  divorce.1  In  case  of  actual  cru- 
elty, such  language  may  be  shown  in  aggravation.2  A  divorce 

169  Ala.,  84.    2  73  111.,  497. 


124  MABKIAGE  AND  DIVOBCE. 

will  not  be  allowed  on  the  ground  of  extreme  cruelty  when 
the  complaining  party  wilfully  provoked  the  violence  com- 
plained of,  unless  such  violence  was  largely  in  excess  of  the 
provocation  therefor.1  In  a  case  of  violence  toward  wife  suf- 
ficient to  authorize  a  divorce  for  cruelty — held  not  excused  hy 
the  fact  that  the  wife  had  had  temper,  and  conducted  herself 
badly  toward  her  husband.2 

It  has  been  deemed  cruelty  for  a  husband  to  openly  con- 
sort with  prostitutes.3 

Evidence  that  a  husband  repeatedly  threatened  to  strike 
and  to  kill  his  wife — held,  to  justify  a  decree  of  divorce,  al- 
though he  never,  in  fact,  inflicted  any  great  physical  injury 
upon  her.4 

If  wife  applies  for  a  divorce  on  the  grounds  of  cruelty, 
the  husband  may  defend  successfully  by  showing  adultery  on 
part  of  wife.5 

Cruelty,  to  justify  a  divorce,  must  be  unmerited  and  un- 
provoked, or  wholly  disproportionate  to  the  provocation 
given.6 

A  single  whipping  of  a  wife  is  "  extreme  cruelty "  suf- 
cient  for  a  divorce,  nor  can  any  words  uttered  by  the  wife 
afford  adequate  provocation.7 

On  suit  for  divorce  for  husband's  cruelty  in  striking  his 
wife,  her  bad  temper  and  petulant  manners  are  no  justifica- 
tion.8 

Husband  beat  his  wife,  by  reason  of  an  ill-founded  suspi- 
cion that  she  was  going  to  poison  him — held,  she  was  not  en- 
titled to  a  divorce.9 

Abusive  language  and  letters  by  a  husband  to  his  wife, 
in  which  he  said  he  did  not  believe  their  child  was  his,  and 
charged  her  with  being  rotten  at  heart,  and  having  procured 
abortions  on  herself — held,  to  constitute  extreme  cruelty.10 

Two  acts  of  physical  violence  committed  by  a  husband, 

1  56  N.  H.,  316.  46  111.,  134.  4Nev.  395.  8  N.  H.,  307.  14  Cal.  459.  5  Wis., 
449.  2  5  La.  An.,  32.  37  Cal.,  364.  3  40  Mich..  493.  60  Iowa,  397.  «  31  Wis.,  235. 
»  49  Vt.,  195.  6  11  Ore.  303.  7  5  Mont.,  577.  8  16  Neb.,  196.  9  16  Neb.,  453.  10  33 
Kan.,  1. 


\ 

DIVORCE.  126 

apparently  endangering  the  safety  or  health  of  the  wife  so  as 
to  incapacitate  her  for  the  proper  discharge  of  her  conjugal 
duties — held,  to  constitute  extreme  and  repeated  cruelty.1 

Vile,  profane,  abusive  language,  and  the  chargfcag^incest 
on  plaintiff's  son,  do  not  constitute  grounds  for  divorce.2 

It  is  "extreme  cruelty,"  justifying  a  divorce,  to  expel  a 
wife  and  a  young  and  dependent  stepmother,  and  make  their 
separation  a  condition  of  taking  back  the  wife.3 

A  man  violently  seized  his  wife,  cursed  her  and  drove  her 
and  her  babe  from  his  home,  telling  her  not  to  return.  His 
conduct  before  had  been  harsh,  and  her's  exemplary — held, 
that  for  this  one  act  of  cruelty  she  was  entitled  to  a  di- 
vorce.4 

Jealousy  on  a  husband's  part  does  not  constitute  such 
cruelty  as  to  entitle  the  wife  to  a  divorce ;  no  malignant  de- 
sire to  harass  and  annoy  her  being  shown.5 

Single  instances  of  neglect  to  furnish  a  wife  support  or 
medical  attendance  are  not  alone  grounds  for  divorce.6 

A  wife  sent  anonymous  letters  to  her  husband's  clerk, 
falsely  charging  her  husband  with  criminal  intimacy  with  the 
clerk's  wife,  and  sent  similar  letters  to  the  newspapers — held, 
extreme  cruelty,  justifying  divorce.7 

A  husband  is  entitled  to  a  divorce  where  his  wife,  without 
cause,  has  persistently  charged  him  with  infidelity.8 

Falsely  accusing  a  wife  of  unchastity,  and  of  communi- 
cating to  him  a  venereal  disease — held,  sufficient  ground  for 
divorce.9 

That  a  woman  has  occasionally  addressed  her  husband 
angrily  and  disrespectfully  in  the  presence  of  others,  and, 
for  a  few  days,  has  refused  to  sleep  in  the  same  room  with  him, 
is  no  ground  for  a  divorce.10 

IMPOTENCE. 

Impotence  is,  like  adultery,  a  most  potent  and  general 
cause  for  dissolution  of  the  marriage  contract,  either  by  de- 

1  16  111.  App.,  348.  2  16  Neb.,  15.  3  53  Mich.,  543.  *  64  Tex.,  1.  « 12  Oregon. 
437.  «  00  N.  H.,  211.  7  30  Kan.,  712.  8  49  Mich.,  417.  9  9  Ore.,  525.  8  Ore.,  100. 
10  61  Tex.,  119. 


126  MARRIAGE  AND  DIVORCE. 

cree  of  nullity,  or  of  divorce.  The  statutes  of  every  State  make 
impotence  a  cause  for  nullity  or  divorce,  but  it  has  been  held 
that,  in  absence  of  express  law,  courts  will  not  decree  a  di- 
vorce for  impotence.1  Impotency  has  been  thus  variously 
denned :  "The  incapacity  for  copulation  or  propagating  the 
species ;"  "It  means,want  ofpotentiacopulandi,  and  not  merely 
incapacity  for  procreation."  2  It  is  an  incapacity  that  admits 
neither  copulation,  nor  procreation.  3  And  what  the  law  refers 
to.  is  capacity  for  copula  vera,  and  not  partial,  imperfect  and 
unnatural  copulation.  The  incapacity  must  also  be  incurable. 4 
Again,  it  is  defined  as  "want  of  procreative  power  in  the 
male.  "5  (Barrenness  is  sometimes,  but  incorrectly,  named  as 
synonymous).  Physical  incapacity  and  impotence  are  the  same. 
Impotence  has  been  thus  classified :  Male:  (1)  Physical,  (2) 
Moral  or  Mental,  a  Age,  b  Malformation  or  defect  of  male 
member,  c  Defect  or  disease  of  testicles,  d  Constitutional 
disease  or  disability.  Impotence  in  female,  (a)  Narrowness  of 
Vagina,  (b)  Adhesion  of  Labia,  (c)  Absence  of  uterus,  (d) 
Imperforate  hymen,  (e)  Tumors  in  Vagina.  In  the  male,  it 
will  be  either  malformation  of  genitals,  or  want  of  action ;  in 
the  female,  she  must  be  so  malformed  as  to  bar  coition ;  mere 
barrenness  or  want  of  activity  will  not  suffice.  Either  one  of 
the  parties  may  sue.  If  the  impotency  be  denied,  the  defective 
party  must  submit  to  an  examination,  if  ordered  by  court. 
Sometimes  relief  will  be  denied,  if  complainant,  being  impotent 
party,  wont  be  examined,  and  sometimes  court  will  force  an 
examination. 

If  parties  were  sound  at  time  of  marriage,  and  impotency 
occurred  not  till  after  marriage,  no  relief  will  be  given, even  if 
the  incontinence  of  husband  produced  the  impotency,  al- 
though there  are  dicta,  contrariwise.6  If  a  man  marry  a 
woman  past  the  age  of  child-bearing,  he  can't  be  heard  to 
complain  if  she  be  unfruitful.  If  a  defect  is  curable  by 
medical  or  surgical  treatment,  the  party  should  be  cured,  if  it 

*24N.  J.  Eq.  19.    2  Black  Law  Dictionary .   3  Bun-ill's  Law  Diet.   *BouvierLaw 
Diet.  »  Whar.  &  Stille  Med.  Diet.    6  5  Fost.  267,  5  Paige,  554. 


DIVOECE.  127 

be  not  a  dangerous  operation ;  if  it  be  dangerous,  he  or  sbe 
need  not  j1  but  a  refusal  when  safe,  in  some  jurisdictions, 
would  be  cause,  in  others  not,  for  divorce  or  nullity.2  A  court 
may  decree  impotency  on  the  unsupported  evidence  of  the 
wife.3  Parties  may  be  impotent  as  to  each  other,  though 
both  are  structurally  sound,  but  an  examination  must  be  had 
to  determine  this  delicate  matter.  There  have  been  cases  when 
the  male  was  abnormally  large  in  a  sexual  sense,  and  the 
female  unusually  small  in  the  same  sense ;  they  were  perfect, 
but  not  adapted  to  each  other,  and  it  was  legal  impotence.4 
I  once  at  Chicago  produced  a  divorce  for  a  New  York  city 
female,  on  the  ground  of  cruelty,  but  she  informed  me  that 
she  and  her  husband  made  counter-charges  of  impotency,  and 
were  both  examined,  and  he  was  pronounced  impotent,  and 
she  not,  yet  she  had  a  child  by  her  husband.  When  examina- 
tions are  held,  either  a  physician,  or  two  experienced  women, 
make  the  examination.  It  never  devolves  on  the  court  or  jury. 
If  a  woman  is  so  extremely  sensitive  in  a  physical  sense,  that 
she  cannot  submit  to  the  sexual  embrace,  she  is  impotent ;  it 
must  be  a  physical  and  involuntary  inhibition,  and  not  merely 
an  aversion  to  it.  The  requirement  on  the  part  of  the  female 
is  that  she  have  the  physical  adaptation  to  perfect  coitus,  not 
that  she  shall  be  fruitful;  she  may  be  barren,  but,  if  physically 
sound,  that  is  no  objection.  Impotency  in  the  female  was 
decreed  when  the  vagina  was  half  the  normal  depth  only,  and 
no  uterus  at  all.  Imperfect  sexual  contact  could  be  had,  but 
the  court  deemed  that  insufficient ;  the  facility  must  be  for 
perfect  coitus.  Similarly  of  the  male ;  the  contact,  including 
emission,  must  be  complete ;  in  other  words,  both  parties 
must  have  the  adaptation  for  everything  antecedent  to  actual 
procreation,  and  that  is  sufficient,  even  if  procreation  does  not 
ensue.  A  mental  refusal  of  either  to  cohabit  does  not  con- 
stitute impotence ;  it  may  constitute  cruelty  or  desertion,  fcut 
never  impotence.  In  some  States  a  marriage  is  void  ab  initlo 
for  impotence ;  in  others  voidable  only,  and  parties  may  live 

J  Wright,  518,    2  6  Paige,  175,    3  7  Pa.  Co.  Ct.  595.    «  89  Ala.  291. 


128  MABBIAGE  AND  DIVORCE. 

together  if  they  choose ;  in  still  others,  the  court  will  decree 
nullity  of  marriage.  It  was  one  of  the  canonical  causes  for 
divorce.  The  object  of  marriage  is  held  by  law  to  be  both 
the  sexual  embrace  and  procreation,  and  I  assume  the  only 
reason  to  be  why  want  of  procreation  alone  is  not  cause  of 
divorce  is,  that  it  cannot  be  determined  which  party  is  in 
fault.  If  both  are  sexually  perfect,  this  cannot  be  known,  and 
both  must  be  sexually  perfect,  else  impotency  exists. 

In  speaking  of  impotency,  in  the  pleading,  it  is  sufficient 
to  merely  state  that  the  defendant  was,  at  the  time  of  the 
marriage,  and  is  still,  incurably  impotent ;  if  a  bill  of  particu- 
lars be  demanded  and  allowed  by  the  court,  no  consideration 
of  delicacy  can  avert  a  disclosure,  and  in  arraying  the  evidence, 
the  facts  which  constitute  the  impotency,  must  be  stated, 
however  disgusting  and  revolting,  because  impotency  is  a  ques- 
tion and  conclusion  of  law,  to  be  drawn  from  the  facts  by  the 
courts ;  the  language  may  be  veiled,  but  the  evidence  must  be 
explicit.  "Where  parties  who  are  impotent  (or  either  is)  choose 
to  live  together,  it  is  not  probable  the  law  would  interfere,  but 
in  jurisdictions  where  such  marriages  are  void  ipso  facto,  pro- 
perty rights  must  be  adjusted  as  if  there  was  no  marriage  ; 
the  alleged  wife  would  not  have  dower,  nor  inheritance,  nor 
the  right  of  administration ;  of  course  she  might  be  a  legatee 
under  a  will.  They  could  not  be  proceeded  against  for  adul- 
tery, for  if  capable  of  that  they  were  not  impotent,  and  there 
could  be  no  personal  objection  urged  against  such  an  union. 
A  case  is  recorded  where  a  suit  to  declare  nullity  of  marriage 
by  reason  of  impotency  was  ended,  and  the  parties  lapsed  in- 
to the  nominal  marital  state ;  the  objection  was  made  by  the 
lower  divorce  court  that  a  continuation  of  such  unions  was 
against  public  policy  as  tending  to  immorality,  but  the  court 
overruled  the  objection  and  allowed  the  suit  to  be  discon- 
tinued. 

On  a  bill  by  the  husband  for  the  wife's  impotence,  she 
will  be  compelled  to  submit  to  a  surgical  examination.  The 


DIVORCE.  129 

marriage  of  one  affected  with  congenital  imbecility   declared 
void  at  suit  of  his  guardian.  *• 

When  a  wife,  seeking  a  divorce  on  the  ground  of  the  impo- 
tency  of  the  husband,  admits  that  she  lived  with  him  for  ten 
years,  during  all  which  time  he  was  impotent,  her  living  with 
him  and  making  no  complaint,  is  a  circumstance  which  may 
be  considered  as  tending  to  show  her  story  a  fabrication.  2 

DESERTION. 

This  is  wholly  a  statutory  cause.  The  unwritten  law  of  di- 
vorce knows  nothing  of  it.  Different  phrases  are  used  in  dif- 
ferent States;  as  "abandonment," "separation,"  "desertion." 
The  distance  they  are  apart  is  not  material ;  they  may,  in 
some  cases,  live  in  the  same  house,  and  yet  be  desertion ;  a 
mere  refusal  of  conjugal  intercourse  is  not  desertion,  nor  is 
separation  by  consent,3  nor  yet  absence  on  business,  even  if 
it  continues  beyond  statutory  time,  but  unwarrantable  refusal 
of  conjugal  intercourse  for  two  years  by  wife  is  desertion,4 
Aliter;  78  Me.  548.  If  a  wife  be  compelled  to  leave  home  by 
cruelty,  it  is  the  husband's  desertion. 5  It  was  held  that  the 
refusal  of  wife  to  occupy  nuptial  bed  the  first  night,  and  leav- 
ing home  next  morning,  declaring  an  intention  not  to  return, 
was  desertion.6  A  husband  must  not  desert  wife  because  she 
refuses  sexual  contact.7  There  are  three  things  necessary  to 
constitute  desertion  (1)  cessation  of  cohabitation,  (2)  intention 
to  desert ;  (3)  desertion  against  will  of  complainant.8  Eefusal  of 
wife  to  follow  husband  to  new  domicil  established  by  him,  is 
desertion.9  Non-support  is  not  desertion — mere  absence  of 
cohabitation  is  not.10  If  a  wife  refuses  to  live  or  go  with  hus- 
band, because  of  his  poverty,  it  is  desertion.  A  party,  having 
deserted  the  other,  may  offer  to  return,  and,  if  party  refuses, 
from  thence  it  is  desertion,  by  refusing  party.  If  a  husband 
drives  his  wife  away,  it  is  desertion  by  him.  A  husband  has 
a  right  to  determine  the  domicil,  and  wife  must  follow,  else  it 
is  desertion  by  her ;  if  her  health  wont  admit  of  change  she 

»  1  H.  Lucas.  538.  5  Paige  554.  9  Paige  25.  22  O.  S.  271.  2  93  HI.  37  3.  3  3 
Pitts.  25.  *  36  111.  App.  31.  s  39  JJ.  W.  Rep.  492.  «  57  lo.  370.  *  21  N.  J.Eq.  331. 
•  33  N.  J.  Eq.  204.  9  29  N.  J.  Eq.  96.  «>  2  Brews.  511. 


130  MAKEIAGE  AND  DIVOKCE. 

need  not  follow.  If  she  changes  her  domicil,  her  husband 
need  not  follow  her.  Wife  must  adhere  to  her  husband,  even 
if  he  be  worthless.  If  one  party  uses  violence,  and  the  other 
party  escapes  or  flees  to  escape  the  violence,  it  is  desertion 
by  the  one  using  or  employing  the  violence.  The  desertion  is 
broken  by  an  offer  to  return.  The  only  causes  which  will 
justify  desertion  are  those  also  which  would  justify  divorce ; 
of  course,  an  insane  person  cannot  desert,  legally.  Adultery, 
cruelty  and  desertion  are  the  three  chief  delicta  justifying  di- 
vorce. Where  an  efflux  of  some  time,  as  two  years,  must 
take  place  before  the  cause  is  complete,  if  there  be  a  bonafide 
offer  to  return  before  the  statutory  period  is  complete,  that 
annuls  it  as  cause  for  divorce.  If  then  the  party  at  home 
refuses  to  receive  the  original  offender  back,  he  or  she  com- 
mences the  technical  offence  of  desertion  from  that  period. 
The  reasonable  cause  which  will  justify  one  party  in  abandon- 
ing the  other,  must  be  such  as  would  justify  a  divorce.1 

Separation,  and  intention  to  abandon,  must  concur,  in  order 
to  constitute  the  ground  for  divorce. 2  If  one  leaves  the  other 
on  business,  and  afterward  determines  not  to  return,  the  deser- 
tion would  commence  from  the  time  the  intention  was  formed.3 

Desertion,  as  a  cause  for  divorce,  must  be  without  any 
sufficient  cause.4  Impropriety  of  language,  and  the  indulg- 
ence of  bad  temper  on  the  wife's  part,  will  not  justify  the 
husband's  desertion.5  When  a  wife  separates  from  the  hus- 
band, with  his  consent,  he  is  not  entitled  to  a  divorce  on  the 
ground  of  her  desertion.6 

If  a  husband  compels  his  wife,  by  his  extreme  cruelty,  to 
abandon  their  home,  she  does  not,  by  that  act,  desert  him. 
But  if  he  designs  by  this  cruelty  to  drive  her  from  home,  he 
thus  deserts  her.7 

A  husband  who  without  just  cause  makes  a  charge  of  in- 
fidelity against  his  wife,  and  thus  drives  her  from  home, 
abandons  her  in  a  legal  sense.8 

1  23  Pa.  St.  343.    2  14  Tex.  356-    3  Wright  224.  *  29  Vt.  148.   6  29  Ala.  719.  8  31 
Miss.  24.    7  3  Stockt.  256.    8  37  Ala.  393. 


DIVORCE.  131 

Separation  by  consent  or  acquiescence,  is  not  desertion.1 
When  a  wife  leaves  a  husband  on  account  of  his  drunkenness, 
it  is  not  desertion  on  his  part,  entitling  her  to  a  divorce.2 
When  husband  and  wife  live  apart  by  consent  they  cannot 
charge  each  other  with  desertion  from  bed  and  board,  with 
the  intention  of  a  voluntary  abandonment.3  Abandonment 
by  the  wife  is  not  a  good  ground  of  divorce,  when  an  un- 
founded charge  of  infidelity  made  by  the  husband,  and  never 
retracted,  is  the  sole  cause  of  separation.4  A  wife  cannot 
compel  her  husband  to  maintain  her,  while  she  refuses  to  go 
and  live  with  him,  without  justifiable  cause.5  Where  a  wife 
insists  on  her  husband  leaving  her  because  of  his  failure  to 
support  the  family,  his  leaving  her  is  not  desertion.6 

Desertion  consists  in  declining  longer  to  cohabit,  and  the 
intent  in  the  mind  of  the  delinquent  to  desert  the  other.7  A 
wife  leaving  her  husband  because  he  could  not  support  her, 
or  because  of  his  abuse  or  neglect,  is  not  desertion.8  Kefusal 
by  the  wife,  of  marital  intercourse  with  her  husband,  does  not 
justify  him  in  deserting  her.9 

Separation  is  not  desertion.  Desertion  is  a  cessation  of 
cohabitation  with  an  intent  to  desert,  persisted  in,  without 
cause,  for  the  statutory  period.10  A  wife  who  leaves  her 
husband's  house  because  he  keeps  his  prostitute  in  it,  is 
entitled  to  a  divorce  and  alimony.11 

Habitual  drunkenness  is  cause  for  divorce  in  most  jurisdic- 
tions, under  varying  conditions — it  means  alcoholism  in  all 
cases.  The  opium  and  chloral  habit  is  not  legal  drunken- 
ness, but  in  the  State  of  Mississippi  that  habit  is  made  a 
specific  cause.  Technical  drunkenness  is  not  completed  by  a 
single  act  of  inebriety,  but  must  assume  the  force  and 
violence  of  a  habit.  I  once  brought  suit  against  a  wife  for 
custody  of  a  child  (she  having  been  previously  divorced)  on 
the  ground  of  habitual  drunkenness ;  she  convinced  the  court 
that  her  husband  learned  her  to  drink,  and  I  was  defeated. 

i  35  Mich.  461.  2  Wright,  210.  3  13  Ala.  145.  *  17  Ala,  499.  6  17  m.  App.  439. 
0  35  N.  J  Eq.  20.  7  5  Color.  55.  8  43  Conn.  313.  27  N.  J.  Eq.  328.  9  6  C.  E.  Greeii, 
331.  10  Wright,  249.  "  41  N.  J.  Eq.  202. 


132  MARRIAGE  AND  DIVORCE. 

But  I  am  in  doubt  if  that  be  good  law :  on  moral  grounds  it 
seems  right,  but  not  technically.  What  "gross"  or  "habitual" 
drunkenness  is,  is  a  question  of  law  for  court  to  decide,  then 
whether  he  be  guilty  or  not,  is  a  question  of  fact  for  the  jury, 
when  there  is  one,  or  also  for  the  court  if  there  is  no  jury. 

An  "habitual  drunkard"  *  *  *  is  one  who  has  a 
fixed  habit  of  drinking  to  excess,  who  frequently  drinks  to 
excess,  who  becomes  intoxicated  on  every  opportunity.1 

Frequent  and  regular  recurrence  of  excessive  indulgence  in 
intoxicating  drinks,  constitute  a  habit  for  which  a  divorce  will 
be  granted.2  Testimony  of  experts  thereon  is  properly 
excluded.3 

Evidence  that  a  husband  had  been  grossly  intoxicated  as 
often  as  three  or  four  times  a  year  for  a  period  of  twelve  or 
fifteen  years,  and  remained  in  that  condition  from  seven  to 
ten  days  on  each  occasion ;  that  at  such  times,  he  went  or  was 
sent  to  an  asylum  for  inebriates,  and  that  any  undue  excite- 
ment made  him  drink,  is  sufficient  to  justify  a  finding  that  he 
had  contracted  such  gross  and  confirmed  habits  of  intoxica- 
tion as  entitled  the  wife  to  a  divorce.4 

FRAUD,    FORCE,     ERROR,    MISTAKE,    DURESS. 

Any  of  the  above  are  causes  of  nullity  of  marriage  under 
the  ordinary  chancery  jurisdiction,  even  in  the  total  absence 
of  any  divorce  legislation  whatever.  They  are  all  grounds 
for  avoiding  any  contract,  and  this  contract  of  marriage  is  no 
exception.  Indeed,  the  law  goes  farther  as  to  contracts  of 
marriage,  making  the  abduction  of  a  female  with  a  view  of 
marrying  her,  a  crime  in  every  one  of  our  States.  In  Arkan- 
sas, as  we  have  seen,  the  penalty  is  death.  The  kind  of 
fraud  against  which  equity  will  relieve,  either  under  a  divorce 
statute  or  generally,  mast  be  substantial,  and  not  fanciful  or 
frivolous.  As  applied  especially  to  divorce,  it  is  held  that  in 
the  absence  of  express  statute  (and  which  exists  in  but  two 
or  three  States),  ante-nuptial  incontinence  is  not  a  good 
ground;  parties  must  satisfy  themselves  on  that  subject  before 

i  34  Kan.  195.    2  6  Mo.  App.  602.    3  126  Mass.  205.    *  126  Mass.  205. 


DIVORCE.  133 

marriage,  and  the  law  will  not  relieve  them.  In  Maryland, 
a  divorce  a  vinculo  may  be  had  "  for  carnal  conduct  of  wife 
before  marriage,  unknown  to  husband. "  In  West  Virginia  a 
wife  may  obtain  a  divorce  a  vinculo,  ''when,  prior  to  such 
marriage,  the  husband,  without  knowledge  of  wife,  had  been 
notoriously  a  licentious  person."  In  Washington,  a  divorce 
a  vinculo  is  authorized  "for  any  cause  deemed  by  court  suf- 
ficient," In  all  other  States  ante-nuptial  incontinence  of  either 
party  is  no  cause ;  in  Maryland,  the  ante-nuptial  incontinence 
of  the  husband  is  no  bar ;  and  in  West  Virginia  the  same 
offence  of  the  wife  is  no  bar ;  while  in  Washington,  either 
would  be  a  bar,  at  the  discretion  of  the  court.  In  many  of 
the  States  pregnancy  of  the  wife  before  marriage,  which 
pregnancy  subsists  at  the  time  of  marriage,  is  a  statutory 
cause  for  divorce ;  but  where  there  is  no  such  statute,  it  is  not 
clearly  a  cause.  The  weight  of  authority  is  that  way,  but 
there  are  decisions,  contra. 

If  a  person  sustains  a  relation  of  trust  and  confidence  to 
another,  he  or  she  must  not  take  advantage  of  that  relation, 
and  the  advantage  it  affords,  to  obtain  a  contract  of  marriage. 
Such  relations  are  those  of  father  and  stepdaughter,  mother 
and  stepson,  guardian  and  ward,  lawyer  and  client,  trustee 
and  cestui  que  trust.  The  two  former  are  inhibited  in  some 
jurisdictions  on  account  of  affinity,  but  even  in  other  juris- 
dictions all  such  relations  of  trust  and  confidence  must  not 
be  abused  in  this  particular,  and  it  would  not  require  much 
proof  in  any  of  those,  or  other  cases  of  trust  and  confidence, 
to  annul  a  marriage  between  such  persons.  When  impo- 
sition is  practiced,  or  even  an  innocent  mistake  in  the  person, 
it  will  be  cause  to  annul  the  marriage.  If  a  female  should 
impose  herself  upon  a  male  as  another  and  different  person, 
the  marriage  could  be  annulled  for  either  mistake  or  fraud, 
according  to  the  animus  with  which  she  did  it ;  similarly  of  a 
male.  A  marriage,  when  either  or  both  parties  are  under 
the  age  of  seven,  is  absolutely  void  without  action,  but  the 
guardian  or  next  friend  of  either  one  under  age  of  consent 


134  MARRIAGE  AND  DIVORCE. 

may  have  the  nullity  spread  of  record ;  and  a  marriage  over 
seven,  but  under  the  age  of  legal  consent,  is  voidable,  and 
when  the  party  attains  the  age  of  legal  consent,  he  or  she 
may  maintain  a  suit  to  annul  it,  by  the  intervention  of  a 
guardian  or  next  friend.  Duress,  like  fraud,  is  a  ground  for 
avoiding  all  contracts,  and  is  also  so  in  case  of  marriage. 
It  not  infrequently  occurs  that  a  male  is  arrested  for  bastardy 
and  is  released  on  marriage  with  his  victim.  On  principle, 
such  marriage  is  void,  but  there  have  been  cases  where  they 
have  been  upheld;  but  voluntary  cohabitation  after  such 
forced  marriage  would  render  it  valid.  Parties  are  some- 
times coerced  to  marry  a  victim  of  their  seduction.  All  such 
marriages  may  be  relieved  against,  on  principle,  unless  vol- 
untary cohabitation  follows.  A  marriage  without  parental 
consent  is  valid,  if  age  of  legal  consent  is  passed. 

Concealment  from  her  husband  by  the  wife,  of  her  un- 
chaste character  previous  to  her  marriage,  or  false  represen- 
tations made  by  her  on  that  subject  previous  to  the  marriage, 
to  induce  him  to  marry  her,  are  not  such  a  fraud  as  will 
support  a  judgment,  declaring  the  marriage  void.1 

A  woman's  concealment  from  her  intended  husband  of  the 
fact  that  she  had  been  the  mother  of  an  illegitimate  child, 
not  good  grounds  for  a  divorce.2 

Pregnancy  before  marriage. —  *  *  *  One  of  the  lead- 
ing and  most  important  objects  of  the  institution  of  marriage 
*  *  *  is  the  procreation  of  children  who  shall  with  cer- 
tainty be  known  by  their  parents  as  the  pure  offspring  of 
their  union.  A  husband  has  a  right  to  demand  that  his  wife 
shall  not  bear  to  his  bed,  aliens  to  his  blood  and  lineage.  This 
is  implied  in  the  very  nature  of  the  contract  of  marriage. 
Therefore  a  woman  who  is  incapable  of  bearing  a  child  to  her 
husband  at  the  time  of  her  marriage,  by  reason  of  her  preg- 
nancy by  another  man,  is  unable  to  perform  an  important 
part  of  the  contract  into  which  she  enters,  and  any  represen- 
tation which  leads  to  the  belief  that  she  is  in  a  marriageable 

1  52  Wis.  120.    99  Pa.  St.  196.    2  8  Ore.  100. 


DIVORCE.  135 

condition,  is  a  false  statement  of  a  fact  material  to  the  con- 
tract, and,  on  well  settled  principles,  affords  a  good  ground 
for  setting  it  aside,  and  declaring  the  marriage  void.1  But  as 
soon  as  the  husband  detects  the  fraud,  he  should  cease  cohab- 
itation and  take  immediate  steps  to  annul  the  marriage. 
(13  Cal.,  87.)2 

If  birth  of  child  occurs  soon  after  marriage,  presumption 
is  that  it  is  child  of  husband,  but  the  presumption  is  re- 
pelled by  the  pregnancy  not  being  far  advanced,  or  husband 
not  having  known  wife  at  date  of  conception,  or  bad  charac- 
ter of  wife,  etc.3  When  husband  wants  to  avail  himself  of 
this  cause  of  action,  he  will  fail,  unless  he  is  prepared  to  rebut 
the  presumption  that  he  is  the  father  of  the  child  4  If  the 
husband  has  had  carnal  intercourse  with  prospective  wife,  and 
she  is  then  pregnant  by  another,  he  can  get  no  relief.5  If  the 
husband  was  so  situated  that  he  might  have  known  of  the 
ante-nuptial  pregnancy  before  marriage,  he  is  not  entitled  to 
relief.  If  one  is  charged  with  bastardy,  and  marries  the 
girl  to  get  release,  it  is  not  deemed  coercion,  although  the 
child  be  not  his  child.8 

A  man  who  had  sexual  intercourse  with  his  wife  before  he 
married  her  cannot  demand  an  annullment  of  the  marriage 
on  the  ground  that,  at  the  time  of  its  consummation,  she  was 
with  child  by  another.7 

Gross  neglect  of  duty  is  a  cause  of  divorce  in  some  States, 
and  may  be  committed  by  either.  The  most  common 
neglect  of  duty  on  part  of  the  husband,  lies  in  not  providing 
a  suitable  home  and  necessaries  for  his  family,  and  treat- 
ment, nursing,  medicines,  attention  and  sympathy  in  illness. 
This  duty  is  relative,  and  depends  very  much  upon  the  hus- 
band's ability.  If  he  does  the  best  his  abilities  will  allow, 
he  is  blameless,  but  if  a  man  is  in  good  health,  he  ought  to 
be  able  to  make  his  family  comfortable,  relatively.  There 
are  many  ways  in  which  he  could  care  for  his  family  besides 

1  3  Ala.,  605.  2  Wright,  630.  5  Blackf.,  81.  5  Paige,  43.  3  1  Grant,  377.  29  Pa.. 
420.  13  Ire.,  502.  2  Brock.,  256.  *  77  N.  C.,  304.  5  97  Mass.,  330.  12  Allen,  26.  6  3 
Dev.  L.,  535.  5  Paige,  43.  '  40  N.  J.  Eq.,  412.  37  N.  J.  Eq.,  195. 


136  MARRIAGE  AND  DIVORCE. 

furnishing  money.  He  could,  if  unable  to  provide  servants, 
himself  aid  in  the  household  duties — minding  the  children, 
doing  rough  chores,  etc.  A  court  can  generally  decide  if  a 
man  is  sedulous  to  do  the  best  he  can  in  making  his  family 
comfortable,  according  to  his  ability.  The  neglect  of  duty 
of  the  wife  consists  in  neglecting  her  home  and  family,  and 
in  denying  to  her  husband  the  conjugal  embrace,  as  he  may 
wish.  As  to  the  former,  the  care  of  the  home  and  the  chil- 
dren devolves  upon  the  wife.  She  should,  within  her  means, 
make  her  home  cheerful,  attractive  and  happy.  She  is  usually 
the  arbiter  of  the  good  or  ill  fortune  of  the  home.  She  should 
not  only  be  and  remain  at  home  at  suitable  hours,  but  should 
introduce  as  much  good  cheer  as  is  possible,  compatible  with 
her  means  to  do  so.  She  should  take  care-  of  the  morals, 
manners  and  health  of  her  children,  and  should  co-operate 
with  her  husband  in  their  suitable  education.  The  courts 
cannot  and  do  not  expect  to  be  able  to  prescribe  or  enforce 
an  ideal  home,  but  an  adverse  policy  to  the  above  maybe  so 
pronounced  as  to  bring  the  delinquent  within  the  terms  of 
the  reprobation  of  the  law.  As  to  the  second  branch,  the 
object  of  marriage  is  threefold :  First,  the  procreation  and 
rearing  of  children ;  second,  the  mutual  care,  nursing  in  ill- 
ness and  comfort  of  the  husband  and  wife ;  third,  the  mutual 
exercise  of  the  conjugal  embrace ;  and  as  to  thisj  all  I  need 
say  is  that  the  husband  is  presumed  to  take  the  initiative,  and 
the  wife  to  respond ;  and  if  she  is  remiss  in  this,  the  law  will 
not  relieve  against  the  necessary  application  of  force,  within 
bounds,  to  enforce  submission.  And  it  will  sometimes  deem 
the  marital  contract  forfeited  on  her  part  by  a  long- continued 
persistence  in  refusal.  I  may  add  that  this  on  the  part  of 
the  husband  is  also  a  duty  which  he  must  perform  at  his  peril. 
The  law  properly  assumes  that  mutual  fidelity  to  the  marriage 
vow  in  this  respect  is  conservative  of  continence,  marital 
chastity,  and  conjugal  fidelity,  and  it  desires  homogeneity 
of  interest  and  desire,  on  so  important  a  matter.  There  have 
been  several  instances  where  wives  have  sought  relief  from 


DIVORCE.  137 

the  marriage  vow  by  reason  of  an  alleged  abnormal  and  in- 
decent desire  of  the  kind,  discussed.  But  it  requires  a  very 
extreme  case  to  authorize  relief.  I  recollect  of  a  case  being 
submitted  to  a  jury  in  the  Superior  court  of  Cook  county, 
Illinois,  it  being  termed  "cruelty."  I  am  not  advised  as  to 
the  evidence,  but  the  issue  was  found  for  the  husband,  and  it 
may  be  stated,  in  a  sentence,  that  when  a  wife  is  in  reasonable 
health,  she  will  be  expected  to  yield  to  her  husband  in  this 
respect,  whether  it  accords  with  her  tastes  and  feelings  or  not* 
and  to  justify  any  other  course  she  must  be  prepared  to  show 
an  abnormal  desire,  out  of  harmony  with  common  experience, 
and  altogether  improper  and  unreasonable. 

INSANITY, 

as  a  ground  for  avoiding  a  marriage,  must  exist  at  the 
precise  time  of  the  marriage.  If  it  exists  before,  or  after, 
it  is  not  a  valid  cause.  If  an  insane  person  has  a  lucid 
interval,  and,  during  the  same,  marries,  it  is  valid.  Like- 
wise, it  has  been  held,  if  an  insane  person  marries  and 
afterward  becomes  lucid,  and  while  in  a  lucid  condition 
cohabits,  the  marriage  is  thereby  rendered  valid.1 

It  has  been  expressly  held  that  the  blind  or  deaf  and 
dumb  are  competent  to  contract. 

MENTAL   WEAKNESS    OB   IDIOCY. 

Idiocy  is  a  ground  for  pronouncing  a  nullity  of  marriage, 
but  in  an  English  case,  Hannen,  Ch.  J.,  said :  "The  contract  of 
marriage  is  a  very  simple  one,  which  does  not  require  a 
high  degree  of  intelligence  to  comprehend.  It  is  an  engage- 
ment between  a  man  and  woman  to  live  together  and  love 
one  another  as  husband  and  wife,  to  the  exclusion  of  all 
others."2  And  in  a  Delaware  case,  Houston,  J.,  remarked: 
"It  would  be  dangerous,  perhaps,  as  well  as  difficult,  to  pre- 
scribe the  precise  degree  of  mental  vigor  or  soundness  and 
capacity  essential  to  the  validity  of  such  an  engagement, 
which,  after  all,  in  many  cases,  depends  more  on  sentiments 

*  2  Dana,  102.  3  Ired.  Eq.  91.  1  Speers  Eq.  569.  1  Fost.  52.  23  Mississ.  410.  28 
Ala.  565.  5  Sneed,  57.  3  Eich.  93 .  12  Mass.  363.  45  Barb.  529.  2  10  P.  D.  82. 


138  MAKEIAGE  AND  DIVORCE. 

of  mutual  esteem,  attachment  and  affection,  which  the  weak- 
est may  feel,  as  well  as  the  strongest  intellects,  than  on  the 
exercise  of  a  clear,  unclouded  reason,  or  sound  judgment,  or 
intelligent  discernment  and  discrimination :  and  in  which  it 
differs  in  a  very  important  respect  from  all  other  civil  con- 
tracts."1 

SODOMY. 

While  adultery  is  usually  spoken  of  as  the  gravest 
marital  sin,  and  while  it  is,  for  many  different  reasons, 
intensely  wicked,  detestable  and  inexcusable,  comprising 
moral  perjury,  treachery,  ingratitude  and  meanness,  yet 
its  offence  is  usually  a  moral  delinquency;  but  sodomy  is 
the  lowest  and  barest  act  of  both  moral  flagitiousness  and 
physical  indecency  that  the  human  mind  can  contemplate. 
Cases  have  drifted  into  the  courts  in  England,  but  none  in 
this  country.  The  English  courts  reprobate  this  vile  act  as 
worse  than  adultery,  and  it  is  clearly  apparent  that  it  is  so. 
In  Rhode  Island  a  divorce  may  be  granted  for  "gross  misbe- 
havior, or  wicked  misconduct  repugnant  to,  and  in  violation 
of,  the  marriage  contract ;"  in  Connecticut,  "for  violation  of 
conjugal  duty;"  in  Maryland,  "for  excessively  vicious  con- 
duct;" in  Alabama,  for  "commission  of  crime  against 
nature ;"  in  Louisiana  and  Texas,  for  "excesses ; "  in  Washing- 
ton, "for  any  cause  deemed  by  court  sufficient."  So  that,  in 
those  States,  a  divorce  might  be  allowed  for  the  commission 
of  this  odious  crime,  and  in  many  other  States,  it  would  be 
authorized  under  the  clause  for  cruel  and  inhuman  treat- 
ment, or  for  intolerable  indignities,  or  for  extreme  cruelty, 
etc.,  but  there  are  States  where  under  no  express  or  implied 
provision  could  any  relief  be  had  against  this  act,  and  in 
such  case  there  would  be  a  serious  defect  of  law,  if  and  pro- 
vided any  considerable  indulgence  in  this  crime  existed, 
which,  however,  does  not.  There  is  an  indirect  way  of 
reaching  the  case,  however,  for  its  commission  is  a  felony 
everywhere,  and  an  offender  could  be  proceeded  against  in 

1 1  Houst.  308. 


DIVOECE.  139 

that  way,  and,  if  convicted,  would  lay  foundation  for  a  divorce. 

INTOLERABLE    TREATMENT    OR    OFFERING-   INDIGNITIES. 

In  a  case  which  seems  to  have  considered  this  subject 
fully,  the  court  say  that  the  treatment  contemplated  by  the 
statute,  included  rudeness,  vulgarity,  unmerited  reproach, 
haughtiness,  contempt,  contumely,  studied  neglect,  intentional 
incivility,  injury,  manifest  disdain,  abusive  language,  malig- 
nant ridicule,  and  every  other  plain  manifestation  of  settled 
hate,  alienation  and  estrangement,  but  that  such  malconduct 
must  be  habitual,  permanent  and  continuous.1  A  later  court, 
in  the  same  State,  suggested  that,  in  applying  it,  "Chancel- 
lors should  act  with  great  caution  to  avoid  the  gradual 
approach,  by  imperceptible  steps,  to  the  practice  of  holding 
all  matrimonial  bickerings,  by  which  parties  may  render  each 
other  unhappy,  to  be  valid  grounds  of  divorce."2  It  has  been 
held  that  the  indignities  need  not  be  sufficient  to  hazard  life.3 
An  excessive  use  of  opiates  was  deemed  sufficient.4  A  false 
accusation  of  adultery  may  be  sufficient.5  It  has  been  held 
unnecessary  to  use  personal  violence.6  A  husband  intro- 
duced a  prostitute  in  his  own  house  and  held  sexual  com- 
merce with  her,  during  the  absence  of  the  wife — held,  insuf- 
ficient.7 In  one  case  it  stated  that  "if  threats  of  violence 
have  been  made,  accompanied  by  charges  of  infidelity  and 
the  withdrawal  of  intercourse,  and  the  refusal  to  bed  with  the 
wife,"  was  sufficient.8  In  another  case,  threats  were  made 
by  a  jealous  husband,  and  he  denied  the  paternity  of  the 
child  with  which  she  was  now  pregnant.9  Still  again,  "in- 
sulting and  disgraceful  language  by  itself  addressed  to  the 
wife  by  the  husband  may  not  be  an  'indignity  to  the  person' 
in  a  legal  sense ;  and  so,  slight  personal  violence  without 
injury  to  the  body  or  health,  of  itself,  will  not  justify  a 
divorce,  but  both  combined  and  frequently  repeated"  would 
suffice.10  In  an  English  case  it  was  held  that  the  rule  was 
quite  flexible,  according  to  the  station  in  life  of  parties.11 

1  9  Ark.  507.  238  Ark.  119.  »62Pa.  206.  «  5  Mo.  278.  5  23  Mo.  App.  169. 
8  44  Ark.  429.  T  78  N.  C.  102.  8  4  Jones  Eq.  82.  9  2  Jones  Eq.  392.  10  76  N.  C.  436. 
114  En*.  C.  C.  310. 


140  MARRIAGE  AND  DIVORCE. 

FAILURE    TO    SUPPOBT. 

In  a  New  Hampshire  case,  the  court  said :  "No  neglect  of 
a  husband  *  *  to  make  provision  for  his  wife's  support  is 
a  good  cause  of  divorce,  unless  it  was  in  his  power  to  do  so, 
and  we  are  all  of  opinion  that  the  husband  cannot  be  considered 
as  having  the  power  to  make  such  provision,  within  the  mean- 
ing of  the  statute,  unless  he  has  property.  It  is  not  enough  to 
show  that  he  has  been  able  to  labor;  it  must  be  distinctly 
shown  that  he  has  actually  had  property  sufficient  to  enable 
him  to  make  such  provision."1  And  Field,  J.,  said:  "The 
neglect  must  be  such  as  leaves  the  wife  destitute  of  the  com- 
mon necessaries  of  life,  or  such  as  would  leave  her  destitute, 
but  for  the  charity  of  others.  If  those  common  necessaries 
are  provided  by  the  earnings  of  either  husband  or  wife,  there 
is  no  wilful  neglect.  The  earnings  of  both  go  into  a  com- 
mon fund  and  become  common  property,  the  control  and 
disposition  of  which  belong  to  the  husband,  and  when  applied 
by  him  or  with  his  assent  for  her  support,  and  are  sufficient 
for  that  purpose,  there  is  no  basis  for  a  decree,  and  the  ap- 
plication must  fail.  In  the  present  case,  the  earnings  of  the 
wife  (plaintiff)  were  sufficient  for  her  support,  and  were 
applied  to  that  purpose,  and  it  does  not  appear  that  the 
defendant  ever  exercised  control  over  them,  or  interfered  with 
their  use,  *  *  nor  does  it  appear  that  the  defendant  was 
at  any  time  the  owner  of  property  sufficient  to  provide  the 
necessaries  of  life.  This  should  appear  affirmatively  on  the 
part  of  the  applicant.  The  ability  *  *  *  has  reference 
to  the  possession  by  the  husband  of  the  means,  in  property, 
to  provide  such  necessaries,  not  to  his  capacity  of  acquiring 
such  means  by  labor."  2 

MISCEGENATION. 

"Some  courts  appear  to  have  held  that  a  person  should 
be  regarded  as  ethnologic  ally  and  legally  "white,"  when  his 
white  blood  predominated  both  in  proportion  and  in  appear- 
ance. Those  least  disposed  to  consider  persons  to  be  white 

1  I.  N.  H.  198.    2  9  Cal.  476. 


DIVORCE.  141 

who  have  any  proportion  of  African  blood,  have  admitted  that 
persons  possessing  only  an  eighth  part  of  such  blood  should 
be  regarded  as  (legally)  white."1  In  North  Carolina, 
"persons  of  color"  are  adjudged  to  be  such  as  are  descended 
from  negroes  with  four  white  ancestors  in  consecutive  gen- 
erations. In  general,  all  statutes  which  have  legislated  at 
all  on  the  subject,  have  made  such  marriages  void,  ipso 
facto.2  In  Tennessee,  the  law  provided  that  a  marriage  could 
not  be  contracted  between  white  and  black,  and  it  was  construed 
that  such  words  were  mandatory,  and  that  such  assumed 
marriage  was  null  and  void.3  Several  of  the  States,  Oregon 
and  Nebraska  among  others,  tolerate  miscegenation  when  the 
colored  person  has  less  than  one-quarter  negro  blood,  and 
that  perhaps  might  be  adopted  as  a  general  rule,  but  it 
probably  would  depend  some  on  the  local  prejudices.  It 
would  be  very  difficult,  in  many  cases,  to  determine  how 
much  negro  blood  was  in  a  person,  as  the  ancestors  them- 
selves might  not  be  clearly  denned  as  to  proportions.  Fortu- 
nately, there  is  but  little  tendency  to  miscegenation.  No 
white  with  any  self-respect  will  consort  with  any  person  of 
color,  and  negroes  and  mulattos  themselves,  as  a  rule,  prefer 
their  own  color.  Marriage  between  Chinese  and  whites,  also 
between  Indians  and  whites,  are  not  interdicted,  as  doubtless 
they  should  be  in  the  former  case. 

In  North  Carolina,  it  was  held  that  if  citizens  of  that 
State,  which  renders  void  a  marriage  between  whites  and 
blacks,  should  resort  to  South  Carolina,  where  there  is  no 
such  prohibition,  and J  intermarry,  in  order  to  evade  the 
North  Carolina  statute,  and  then  return  to  the  latter  State, 
such  marriage  will,  nevertheless,  be  void  in  that  State ; 4  but 
in  a  case  where  a  white  woman  went  from  North  Carolina  to 
South  Carolina,  and  there  married  a  negro  citizen  of  South 
Carolina,  and,  thereafter,  the  parties  migrated  to,  and  took 
up  their  residence  in,  North  Carolina,  the  marriage  was  good 

1  34  Me.  77.    2  3  Ire.  455.    3  2  Tenn.  Chy.  216.    *  76  N  0.  251. 


142  MARRIAGE  AND  DIVORCE. 

there.     And,  in  fact,  that  would  seem  to  be  the  philosophical 
and  logical  doctrine.1 

The  joining  of  any  religious  sect  which  denies  the  validity 
or  propriety  of  marriage,  is  a  cause  of  divorce  in  three  States. 
In  New  Hampshire  it  is  coupled  with  a  refusal  to  cohabit  for 
six  months;  also  Massachusetts  and  Kentucky.  Tbe  Sha- 
kers, Oneida  community  and  such,  were  referred  to. 


Conviction  for  crime  or  actual  imprisonment  for  a  felony,  is 
a  general  cause,  with  some  limitations.  In  some  States  a 
conviction  and  sentence  to  imprisonment  for  life,  annuls  a 
marriage  ipso  facto,  nor  will  a  pardon  revive  the  marriage. 
In  some  jurisdictions,  a  conviction  must  be  for  a  certain  pe- 
riod, and  the  divorce  cannot  be  applied  for  till  a  certain  part 
of  the  sentence  has  been  served  out ;  in  others,  application 
can  be  made  at  once,  upon  conviction  and  sentence.  In  some 
jurisdictions,  application  maybe  made  at  any  time  after  sen- 
tence ;  in  others,  it  must  be  made  during  the  life  and  term  of 
the  imprisonment.  There  are  yet  other  States  where  a  di- 
vorce may  be  granted  for  conviction  of  a  felony  before  mar- 
riage, if  unknown  to  complainant  before  marriage.  The  con- 
viction must  be  of  a  felony  or  infamous  crime  and  not  a  mis- 
demeanor, except,  in  some  States,  a  misdemeanor  is  sufficient. 
The  proof  required  is  the  record  of  conviction  and  proof  of 
identity. 

INCOMPATIBILITY    OF   TEMPER,  ETC. 

Alienation  of  feeling,  to  any  degree,  is  no  ground  for  di- 
vorce.2 

A  constant  series  of  annoyances,  bickerings  and  contemn- 
ing of  the  husband,  do  not  constitute  such  extreme  cruelty 
as  will  justify  granting  a  husband  a  divorce  from  his  wife.3 

Misunderstandings  and  difficulties  between  husband  and 
wife,  attributable  to  a  want  of  proper  control  of  temper  on 
both  sides,  lay  no  foundation  for  divorce.4 

Kefusal  of  wife  to  indulge  her  husband  in  sexual  inter- 

1  76  N.  0.  242.    2  Brayt.,  55.    3  49  Mich.,  639.    *  34  La.  An.,  611. 


DIVOKCE.  143 

course,  and  the  declaration  that  she  would  never  bear  chil- 
dren to  him,  do  not  furnish  good  cause  for  a  divorce.  1 

The  wife's  fear  of  having  too  many  children  is  no  ground 
for  divorce.2 

There  are  many  other  minor  causes,  for  which  see  "  Stat- 
utory Causes;"  as  gross  misbehavior  and  wickedness  inhar- 
monious and  incompatible  with  the  marital  relation.  This 
simply  authorizes  a  court,  in  its  sound  judicial  discretion,  to 
determine  what  offences,  and  their  magnitude,  will  authorize 
judicial  interposition.  The  unsophisticated  person  might 
think  that  nothing  was  needed  to  be  consulted  but  the  whim, 
caprice  or  wish  of  the  judge.  Such,  however,  is  not  the  mean- 
ing of  "  sound  judicial  discretion."  It  means  rather  a  dis- 
cretion based  on  experience  and  enforced  by  the  oath  of  office, 
discarding  prejudice,  expediency  or  sympathy.  It  also  has 
the  check  of  an  appeal,  and  the  court  dare  not,  if  it  would, 
commit  any  flagrant  breach  of  official  obligations. 

Public  defamation  is  a  cause  in  some  States ;  i.  e.,  if  one 
party  publicly  slanders  another,  as  to  accuse  of  adultery  and 
the  like. 

Offering  intolerable  dignities  is  a  cause  in  several  States. 

MISCELLANEOUS. 

A  husband  is  entitled  to  a  divorce  when  his  wife,  without 
cause,  has  persistently  charged  him  with  infidelity.3 

Falsely  accusing  a  wife  of  unchastity  and  of  communi- 
cating to  him  a  venereal  disease — held,  sufficient  ground  for 
divorce.4 

That  a  woman  has  occasionally  addressed  her  husband 
angrily  and  disrespectfully  in  presence  of  others,  and,  for  a 
few  days,  has  refused  to  sleep  in  the  same  room  with  him,  is 
no  ground  for  a  divorce.5 

Excessive  sexual  intercourse  is  ground  of  divorce,  and  the 
fact  may  be  shown  by  the  wife's  testimony,  which  is  not  ex- 
cluded on  grounds  of  public  policy  or  decency.6 

13  Pitts    Pa.,  25.    2  Wright,  719.    3  49  Mich.,  417.    *  9  Oregon,  525 .  8  Oregon, 
100.    5  61  Texas,  119.    8  58  N.  H.,  569. 


IV. 

DEFENSES. 


As  in  other  suits,  so  in  this,  the  leading  defense  is  a  total 
denial  of  everything  alleged  in  the  bill  or  libel.  In  some 
States  the  answer  must  be  under  oath,  in  others  the  oath 
may  be  waived;  in  all  jurisdictions  the  answer  may  be 
demanded  under  oath.  Where  this  is  required,  such  an. 
swer  has  the  force  of  the  evidence  of  two  witnesses,  or 
rather,  it  requires  evidence  to  neutralize  and  overcome  it,  equal 
to  two  witnesses,  or  to  one  witness  and  further  corroboration 
equivalent  to  that  of  one  witness.  A  complainant  usually  waives 
the  answer  under  oath  when  he  or  she  can,  and  in  such  cases 
the  answer  has  no  force  except  as  an  admission  of  all  facts 
admitted  in  the  answer.  Hence,  when  an  answer  is  de- 
manded not  under  oath,  a  defendant  should  not,  as  mat- 
ter of  policy,  admit  anything  that  cannot  be  easily  proven ; 
but  anything  that  can  readily  be  proven,  or  that  it  is  no 
object  to  deny,  should,  also  as  matter  of  policy,  be  frankly 
admitted.  The  answer  should  admit  or  deny  each  allega- 
tion in  detail,  and  at  close,  should  contain  a  general  clause^ 
thus :  "And  the  defendant  specifically  denies  each  and 
every  allegation  of  said  bill  not  heretofore  answered  in  de- 
tail and  in  specific  terms."  If  there  are  matters  of  avoid- 
ance to  be  pleaded  they  should  be  left  till  the  matters  of 
strict  denial  are  disposed  of,  then  they  should  be  fully 
and  specifically  set  forth;  but,  even  though  such  matters 
be  sufficient  for  defendant  to  obtain  a  divorce  from  com- 
plainant, no  divorce  can  be  granted  until  a  cross-bill  also 


DEFENSES.  145 

embodies  them,  and  in  such  case  those  facts  should  be 
set  out  in  the  answer,  in  order  to  defeat  the  complainant, 
and  also  embodied  in  a  cross-bill  in  order  to  obtain  a 
divorce,  for  it  is  a  rule  of  chancery  practice  that  no  af- 
firmative relief  can  be  obtained  by  a  defendant  on  an  an- 
swer. To  obtain  such  relief  he  must  become  a  party  in 
his  turn  by,  and  through,  the  media  of,  a  cross- bill.  While 
both  parties  may  be  willing  to  be  divorced,  it  frequently 
is  of  great  importance  which  one  secures  the  divorce,  as, 
for  example,  a  husband  may  charge  his  wife  with  adultery, 
which  charge  she  must  of  course  repel;  but  she  may  be 
able  in  a  cross-bill  to  correctly  charge  him  with  adultery, 
and  herself  secure  the  decree  for  that  cause.  In  that  way, 
she  does  not  necessarily  forfeit  dower  nor  alimony,  but  does  get 
rid  of  an  obnoxious  husband. 

In  general,  although  parties  can  make  no  agreement 
for  a  divorce,  they  may  make  an  agreement  about  alimony, 
and  it  will  be  respected.  If  they  make  an  agreement  to 
be  divorced  it  will  be  a  complete  bar,  even  though  a  good 
cause  exists,  inasmuch  as  collusion  is  a  complete  bar.  In 
charging  adultery,  it  is  usually  needful  to  charge  time  and 
place  and  person  with  whom,  if  known.  But  it  has  been 
held  in  the  English  divorce  court1  that  if  such  acts  are 
sufficiently  circumstantial  it  will  not  be  necessary  to  speci- 
fy time  and  place. 

In  Indiana,  Kentucky,  Louisiana,  Vermont,  Washing- 
ton, and,  in  some  cases,  Michigan,  the  prosecuting  attorney 
is  required  to  appear  and  represent  the  interests  of  the 
defense  in  all  cases  of  default.  Courts  are  sedulous  to 
observe  that  all  defenses  are  genuine,  and  that  the  merits 
of  a  cause  are  exhausted  on  the  part  of  the  defense,  and  the 
court  not  infrequently  takes  a  hand  in  the  examination.  The 
principal  special  defenses  are  collusion  (but  which  is  made 
by  the  court),  condonation,  connivance,  recrimination,  and 
limitation  or  laches,  or  neglect  to  sue  in  apt  time. 

1  3  Moo.  P.  0.,  84. 


146  MARRIAGE  AND  DIVORCE. 

COLLUSION, 

as  the  term  imports,  is  an  agreement  to  do  something  not 
lawful  or  authorized.  It  has  been  variously  denned  thus : 
"A  deceitful  agreement  or  compact  between  the  husband  and 
wife,  for  the  one  party  to  bring  an  action  against  the  other 
for  a  divorce,  when  there  was  no  lawful  cause ;  "  or  a  secret 
understanding  between  husband  and  wife  to  proceed  fraudu- 
lently against  each  other  for  a  divorce. 

If  there  is  a  sufficient  cause  there  is  no  need  to  collude. 
They  may  agree  together  that  no  defense  shall  be  made,  or 
that  the  fault  or  cause  shall  be  confessed,  but  they  must  not 
concur  in  manufacturing  a  cause  for  the  purpose ;  but  one 
party  may,  of  his  own  motion,  manufacture  a  cause  simply  to 
be  divorced,  which  the  other  party,  if  in  no  wise  implicated, 
may  take  advantage  of.  I  once  had  a  case  where  the  husband 
took  a  female  to  a  hotel  and  registered  as  "X.  Y."  (his  true 
name)  "  and  wife, "  and  occupied  a  room  together  over  night. 
The  wife  sued  for  divorce  on  account  of  alleged  adultery  com- 
mitted at  this  hotel,  and  for  proof,  adduced  the  clerk  of  the 
hotel  and  the  hotel  register,  together  with  the  testimony 
of  the  wife  as  to  the  handwriting,  and  that  her  husband  was 
not  at  home ;  and  the  hotel  clerk  and  bell-boy  testified  that 
the  female  who  shared  the  room  with  the  husband  was  not 
the  lady  then  present  (the  wife),  and  the  wife  added  that  she 
never  was  at  the  hotel,  and  had  no  collusion  in  this  scheme. 
Suppose  she  had  colluded  in  this  ?  The  divorce  would  have 
been  denied.  I  also  once  was  cognizant  of  a  divorce  where  a 
really  fond  husband,  by  collusion,  whipped  his  wife  in  view 
of  witnesses  to  authorize  a  divorce,  and  the  divorce  was 
granted,  but  the  collusion  was  suppressed. 

Collusion  has  been  thus  defined  by  the  courts :  It  may 
be  by  keeping  back  evidence  of  what  would  be  a  good  an- 
swer, or  by  agreeing  to  set  up  a  false  case.  Or,  if  it  is  an 
agreement  between  husband  and  wife,  for  one  to  represent  in 
court  that  the  other  has  committed  a  breach  of  the  marriage 


DEFENSES.  147 

relation  for  the  purpose  of  obtaining  a  divorce ;  and  it  will 
bar  a  divorce. 

Confessions,  also,  are  rigidly  scrutinized,  to  see  that  they 
bear  no  marks  of  collusion. 

In  case  of  Danforth  vs.  Danforth,  105  111.,  603,  the  par- 
ties made  an  agreement  as  follows,  viz. :  "  It  is  hereby  stipu- 
"  lated  by  the  undersigned,  that  the  within  sum  of  $29,000  is 
"  deposited  with  the  Union  National  Bank,  Chicago,  by  George 
"  W.  Danforth,  as  a  special  deposit,  to  be  paid  to  Anna  Dan- 
"  forth  whenever  she  or  her  attorney  produces  a  certified 
"  copy  of  a  decree  of  divorce  from  said  Anna  Danforth  in  the 
"  Circuit  Court  of  Iroquois  County,  Illinois,  said  divorce  to 
"  be  granted  on  or  before  November  10th,  1881,  or  said  money 
"to  be  returned  to  said  Danforth.  She  is  also  to  produce  a 
"  certificate  of  the  clerk  of  said  Circuit  Court  that  the  lands 
"described  in  a  certain  deed,  dated  October  28,  1881,  from 
"George  W.  and  Anna  Danforth  to  Almon  G.  Danforth,  are 
"free  and  clear  of  all  encumbrances;  and,  further,  shall  also 
"  deliver  to  said  George  W.  Danforth  a  certain  contract  of 
"sale  of  land  made  by  said  Anna  Danforth  to  one  John  F. 

"Eaumets  and Fry,  duly  assigned  by  her  to  said  Almon 

"G.  Danforth. 

*'  ANNA  DANFORTH. 

"  GEORGE  W.  DANFORTH." 

The  husband  procured  the  divorce  on  the  ground  of  cru- 
elty, and  the  wife  withdrew  from  the  bank,  and  appropriated 
to  her  own  use,  the  $29,000.  She  then  moved  the  court  to 
vacate  the  decree  on  the  ground  of  fraud  and  collusion.  The 
lower  court  refused  to  do  it,  but  the  Supreme  Court  ordered 
it  done,  although  the  husband  had  died  meanwhile.1 

Where  there  is  collusion  between  the  parties,  no  decree  will 
be  made.2 

Parties  even  with  the  very  best  of  causes,  have  no  right  to 
make  an  agreement  concerning  it.  It  must  be  subjected  to 
the  absolute  and  unbiased  arbitrament  of  the  divorce  court. 

» 105  111.,  603.    2  Wright,  243. 


148  .  MARRIAGE  AND  DIVORCE. 

If  a  collusion  does  occur,  and  the  court  finds  it  out,  it  will 
dismiss  the  bill,  regardless  of  the  merits  of  the  case.  A  party 
may  admit  the  charges  of  the  bill  and  co-operate  toward  a  de- 
cree against  him  or  her  after  the  suit  is  brought,  but  the  error 
would  lie  in  agreeing  outside  of  court  either  to  perform  some 
act  as  a  cause  for  divorce,  or  to  make  some  agreement  out  of 
court  to  aid  it.  Collusion  in  a  divorce  proceeding  may  be 
passive,  as  when  the  understanding  is,  that  the  defendant 
shall  suppress  facts  which  might  be  constituted  a  good  de- 
fense. Collusion  *  *  *  may  be  by  keeping  back  evi- 
dence of  what  would  be  a  good  answer.  If  a  party  to  a  suit, 
by  agreement  with  the  other,  procures  the  withdrawal  from 
the  notice  of  the  court  of  facts  relevant  to  the  charge  which 
is  imputed  to  him  or  her,  that  is  collusion.  The  parties  must 
be  acting  in  concert,  and  some  imposition  upon  the  court 
must  be  the  result.  It  is  not  collusion  for  a  husband  to  al- 
low his  wife  alimony  during  the  suit,  or  for  a  wife  to  aid  in 
the  proofs  against  herself,  but  it  is,  if  the  husband  allow  such 
alimony  in  consideration  of  the  wife's  withholding  facts  which 
might  imperil  his  suit.  Of  course,  the  party  proceeded  against 
may  allow  the  case  to  go  by  default.  Independent  of  any 
other  consideration,  if  the  motion  was  properly  made  and  in 
due  season,  the  court  would  order  any  judgment  of  divorce 
obtained  by  collusion  or  fraud  to  be  set  aside — not  from  any 
regard  to  the  parties  concerned,  but  from  motives  of  public 
policy.1 

CONDONATION. 

It  is  "a  blotting  out  of  an  offence  (against  the  marital  re- 
lation) imputed,  so  as  to  restore  the  offending  party  to  the 
same  position  he  or  she  occupied  before  the  offence  was  com- 
mitted."2 The  forgiveness  by  a  husband  or  wife  of  a  breach 
of  marital  duties  on  the  part  of  the  other  party,  as  of  acts  of 
cruelty  or  adultery.  It  is  either  express  or  implied ;  express 
when  signified  by  words  or  writing ;  and  implied  from  the  con- 
duct of  the  parties,  as  a  taking  back  to  the  matrimonial  couch 

1  41  Barb  ,  140.    2  1  Sw.  &  Tr.  334. 


DEFENSES*  149 

the  offender.1  It  has  been  termed  a  conditional  forgive- 
ness, being  accompanied  by  an  implied  condition  that  the  in- 
jury shall  not  be  repeated.2  Condonation  is  a  conditional  for- 
giveness, founded  on  full  knowledge  of  antecedent  guilt.3 
The  term  " condonation"  necessarily  includes  that  operation 
of  the  mind  evinced  by  words  or  acts,  known  as  forgiveness ; 
the  free,  voluntary  and  full  forgiveness  and  remission  of  a 
matrimonial  offence.4  Unless  accompanied  by  that  opera- 
tion of  the  mind,  even  cohabitation  without  fraud  or  force  is 
insufficient  to  establish  a  condonation.5  After  one  of  the 
parties  has  been  wronged  in  a  way  that  would  warrant  a  di- 
vorce ,if  he  or  she  voluntarily  cohabits  with  the  other  party,  it  is 
a  condonation  of  the  offence.6  Condonation  is  but  a  forgive- 
ness on  condition  of  subsequent  fidelity ;  if  not  kept,  the  rights 
of  the  injured  party  are  restored,  as  if  there  had  been  no  con- 
donation.7 An  offer  by  a  wife  to  return  to  the  society  of  her 
husband  is  not  a  condonation,  unless  accepted  by  him.8 
Condonation  is  a  conclusion  of  fact,  not  of  law ;  and  means 
the  complete  forgiveness  and  obliteration  of  an  offence 
against  the  marital  state,  followed  by  cohabitation,  the  whole 
being  done  with  full  knowledge  of  all  the  circumstances  of  the 
offence  forgiven.  Once  accomplished,  it  is  said  the  con- 
donation is  final.9 

Condonation  as  a  defence  is  a  conditional  forgiveness, 
after  full  knowledge  of  the  offence.10  It  is  a  forgiveness  on 
condition  that  the  offence  will  not  be  repeated;  if  repeated, 
the  condonation  fails.11  Condonation  may  be  implied  from 
circumstances,  the  most  potent  of  which  is  cohabition,  but 
other  circumstances  tending  to  show  condonation, will  answer.12 
It  applies  to  cruelty  as  well  as  to  adultery,  although  adultery 
is  the  offence  generally  condoned.13  The  return  of  a  wife  to 
nurse  a  sick  husband,  even  if  she  stays  months,  is  not  con- 
donation unless  they  cohabit  together,  and  so  long  as  the 

1  Shelf.  M.  &  D.  436.  2  4  pai<  460  s  36 ,  Ga  286.  «  2  Robt.  694.  5  27  Mo.  383. 
Wright  475.  9  Conn.  333.  6  10  N.  H.  272.  4  Blackf.  131.  4  N.  H.  272.  6  Mass. 
69.  6  Mass.  147.  *  32  Miss.  279.  19111.334.  27  Ind.  186.  «4  Paige  432.  25  Vt. 
678.  f  1  Sw.  &  Tr.  184.  10  44  Ala.  437.  41  Ga.  46.  n  73  111.  497.  12  92  N  0.  129. 
13  34  Ind.  368. 


150  MAKRIAGE  AttD  DIVORCE. 

husband  remains  in  need  of  a  nurse,  condonation  will  not  be 
presumed  from  their  being  together  in  the  attitude  of  patient 
and  nurse ;  but  if  he  was  able  to  have  sexual  commerce,  and 
the  wife  passed  the  nights  with  him  alone,  such  commerce 
might  be  presumed.1 

The  husband's  condonation  of  the  wife's  adultery  does  not 
debar  her  from  divorce  from  him  on  account  of  his  subsequent 
adultery.2 

Upon  repetition  of  cruel  treatment  after  condonation,  the 
former  wrongs  are  revived.3 

Condonation  is  conditional.  The  subsequent  commission 
of  an  offence  which  falls  within  the  jurisdiction  of  a  court  is 
a  violation  of  the  condonation,  and  avoids  it.4 

The  effect  of  cohabitation  as  a  condonation  of  adultery  is 
less  binding  upon  the  wife  than  the  husband.5 

If  either  party  forgive  the  adultery  of  the  other  it  cannot 
afterward  be  set  up  as  ground  of  divorce  without  evidence  of 
further  guilt.6 

The  offences  of  adultery  and  cruelty  are  essentially  differ- 
*ent,  and  the  same  circumstances  as  respects  condonation 
cannot  be  legally  applicable  to  both,  and  cohabitation  after 
acts  of  extreme  cruelty  is  not  a  bar  to  divorce  for  that  cause.7 

CONNIVANCE. 

Connivance  is  the  willing  consent  to  an  adultery,  in  the 
sense  of  being  an  accessory  before  the  fact ;  or  a  culpable  ac- 
quiescence in  a  cause  of  conduct,  reasonably  likely  to  lead  to 
the  offence  being  committed.8  Corrupt  or  guilty  assent  to 
wrong-doing,  not  involving  actual  participation  in,  but  knowl- 
edge of,  and  failure  to  prevent  or  oppose  it.  To  pretend 
blindness  or  ignorance,  to  forbear,  or  to  seem  not  to  see ;  for- 
bearance of  opposition  or  of  disapproval.9  Pretended  ignor- 
ance of,  or  blindness  to,  the  faults  of  others.10 

The  connivance  of  the  husband  to  his  wife's  prostitution 
deprives  him  of  the  right  of  obtaining  a  divorce,  or  of  recover- 

1  26  Mo.  566.  2  1 35  Mass.  386.  3  87  Ind.  481.  *  19  Ala.  307.  31  N.  J.  Eq.  225. 
10  Paige  20.  5  1  Edw.  Chy.  439.  6  10  N.  H.  272.  7  1  Bradw,  245.  8  Webster  Diet. 
9  Worcester  Diet.  10  Stormouth  Law  Diet. 


DEFENSES.  151 

ing  damages  from  the  seducer.1  It  may  be  proved  by  impli- 
cation. It  usually  implies  a  consent  given  while  the  offence 
or  adultery  is  proceeding,  and  a  consent  given  contrary  to 
law  or  good  morals ;  but  does  not  imply  any  actual  co-oper- 
ation— only  the  bare  assent  or  neglect  to  forbid  or  oppose.  A 
divorce  will  not  be  granted  for  the  wife's  adultery,  committed 
through  the  husband's  procurement  or  assent.2  When  the 
adultery  has  been  proven,  a  connivance  destroys  all  claims  to 
remedy  by  way  of  divorce.  Connivance  differs  from  con- 
donation, though  the  same  legal  consequences  may  attend  it. 
Connivance  necessarily  involves  criminality  on  the  part  of  the 
conniver ;  condonation  may  take  place  without  imputing  the 
slightest  blame  to  the  party  who  forgives  the  injury.  Conni- 
vance must  be  an  act  of  the  mind  before  the  offence  is  com- 
mitted ;  condonation  is  the  result  of  a  determination  to  forgive 
an  injury  which  was  not  known  till  after  it  was  inflicted.3 

A  husband  who  connives  at  an  act  of  adultery  by  his  wife 
cannot  complain  of  any  subsequent  act,  whether  with  the 
same  or  another  particeps  criminis.4'  It  is  not  connivance  to 
watch  a  wife  who  is  suspected,  and  catch  her  naturally,  but 
without  participating  in  any  way,  in  her  act.5  But  when  a 
husband  does  catch  his  wife  in  flagrante  delicto,  and  does 
nothing  about  it,  it  may  be  presumed  that  he  connives  at  it.6 
Connivance  is  oftenest  practiced  in  cases  of  adultery,  directly 
and  indirectly.  It  is  the  duty  of  the  husband  to  watch  over 
and  guard  the  wife's  honor.  If  he  sees  her  tending  toward 
any  possibility  of  danger  he  should  withdraw  her  from  it. 
When  a  man  marries  he  should  not  introduce  her  to  his  for- 
mer companions  whom  he  knows  to  be  licentious,  nor  should 
he  tolerate  her  associating  with  licentious  persons  of  either 
sex.  But  it  is  no  part  of  a  wife's  duty  to  watch  over  the 
husband  similarly ;  he  is  presumed  to  be  able  to  take  care  of 
himself.  Connivance  may  be  active  or  passive ;  it  is  equally 
fatal  in  either  case.  Where  a  husband  was  willing  his  wife 
should  commit  adultery  if  he  could  thereby  obtain  a  divorce, 

12Caines219.    3  Pick.  299.     2  Abbott's  Law  Diet.     3  41  Barb.  114.    4  Gipps.  2 
Sw.  and  Tr.  116.     5  140  Mass.  528.    6  109  Mass.  408.    142  Mass.  361. 


152  MAKKIAGE  AND  DIVORCE. 

frequently  left  her  alone  with  her  suspected  paramour, 
arranging  for  some  one  to  watch  them,  suffered  them  to  go  on 
excursions  alone,  and  permitting  him  undue  familiarity  with 
her — held,  such  connivance  as  would  prevent  him  from 
obtaining  a  divorce  for  her  adultery.1  A  husband  who  either 
connives  at,  or  assents  to,  acts  of  adultery  by  his  wife  with  one 
man,  can  get  no  divorce  for  acts  of  adultery  committed  there- 
after by  his  wife  with  others.2 

KBCRIMINATION. 

This  is  a  species  of  special  defence  which  has  been  thus 
denned :  "'A  counter  accusation,  an  accusation  made  by  the 
accused  party  against  the  accuser,"3  or  "a  set-off  by  a 
defendant  of  equal  guilt  on  the  part  of  the  complainant  in  a 
suit  for  a  divorce  on  the  ground  of  adultery,"4  or  "a  charge 
made  by  an  accused  person  against  the  accuser;6  "in 
particular,  a  counter- charge  of  adultery  or  cruelty  made  by 
one  charged  with  the  same  offence  in  a  suit  for  divorce  against 
the  person  who  has  charged  him  or  her,"6  or  "an  accusation 
made  by  a  person  accused  against  his  accuser,  either  of 
having  committed  the  same  offence,  or  another.7  In  general, 
recrimination  does  not  excuse  the  person  accused,  nor 
diminish  his  punishment,  because  the  guilt  of  another  can 
never  excuse  him.  But,  in  application  for  divorce  on  the 
ground  of  adultery,  if  the  party  defendant  can  prove  that  the 
plaintiff  has  been  guilty  of  the  same  offence,  the  divorce  will 
not  be  granted. 8  In  Massachusetts,  it  is  well  settled  that  a 
suitor  for  divorce  cannot  prevail  if  open  to  a  valid  charge,  by 
way  of  recrimination,  of  any  of  the  causes  of  divorce  set  out 
in  the  statute.9  Kecrimination  as  a  bar  for  divorce  is  not 
limited  to  a  charge  of  the  same  nature  as  that  alleged  in  the 
libel.10  It  is  sufficient  if  the  recrimination  charges  any  one 
of  the  causes  of  divorce  of  equal  grade,  so  declared  in  the 
statute.11  The  general  principle  which  governs  in  a  case  where 

»  136  Mass.  310.  2  21  N.  J.  Eq.  61.  3  Burrill's  Law  Diet.  *  Shelf ord  on  Mar. 
and  Div.  6  Wharton's  Law  Diet.  6  97  Mass.  531.  3  Blackf.  203.  7  4  Paige,  432. 
31  Barb.  330.  8  17  Abb.  Pr.  48.  9  142  Mass.  362.  135  Mass.  389.  124  Mass.  394. 
1°  142  Mass.  362.  "Ill  Mass.  327.  135  Ma*s.  389. 


DEFENSES.  153 

One  party  recriminates  is,  that  recrimination  must  allege  a 
cause  which  the  law  declares  sufficient  for  a  divorce.1 

In  this  State  (California)  the  statute  has  specified  certain 
acts  or  conduct,  which  shall  constitute  grounds  of  divorce,2 
and,  so  far  as  the  matrimonial  contract  is  concerned,  the 
courts  cannot  distinguish  between  them,  whatever  differences 
there  may  be  in  a  moral  point  of  view.3  "The  several  offences 
must,  therefore,  be  equally  pleadable  in  bar  to  the  suit  for 
divorce — the  one  to  the  other  within  the  principle  of  the 
doctrine  of  recrimination."  Field,  J.4 

A  wife  cannot  get  a  divorce  for  cruelty  when  her  fault 
provoked  it  ;6  nor  when  cruelty  is  charged  will  the  adultery 
of  the  complainant  be  pleadable  in  bar.6  But  this  does  not 
seem  to  be  the  general  rule.  A  counter-charge  of  adultery 
will  be  a  charge  of  adultery,  no  matter  which  adultery  was 
prior  in  point  of  time.  A  counter-charge  of  cruelty  will  not 
bar  a  charge  of  cruelty,  but  a  recrimination  of  adultery  will 
be  a  defence  to  a  charge  of  cruelty.  Cruelty,  which  induces 
adultery,  will  be  a  complete  defence  to  the  adultery. 

The  following  summary  is  believed  to  express  the  true 
state  of  the  law : — 

(1)  Whereas,  according  to  the  English  rule,  cruelty  is  not 
a  bar  or  defence  to   a   proceeding   whose   gravamen  was 
adultery ;  such  is  not  the  rule  here ;  but  cruelty  is  a  bar  here 
to  adultery. 

(2)  In  a  divorce  suit  for  any  cause,    any   delictum  for 
which  the  law  provides  the  same  penalty  will  be  a  complete 
bar,  whether  it  be  of  the  same  kind  or  not. 

(3)  It  is  a  defence  to  a  divorce  suit  either  a  vinculo  or  a 
mensa  et  thoro,  that  either  before,  at,  or  after,  the  offence 
charged,  the  complainant  was,  himself,  guilty  of  any  fault 
which  would  authorize  either  sort  of  a  divorce. 

(4)  A  suit  for  a  full  divorce  will  be  barred  by  the  com- 
mission of  any  act  or  acts  which  justify  a  limited  divorce. 

(5)  The  offence  offered  in  recrimination  must   be   of  a 

»  97  Mass.  531.    4  Allen,  39.    2  IQ  Gal.  249.    3  124  Mass.  394.    «  49  Vt,  195. 
47  Tex.  336.    5  31  lo.  451.    «  40  How.  Pr.  258. 


154  MARRIAGE  AND  DIVORCE. 

nature  which,  if  set  forth  in  an  original  bill,  would  justify  a 
divorce,  either  full  or  limited,  else  it  will  be  unavailing. 

(6)  It  does  not  matter  what  the  delictum  is,  offered  by 
way  of  recrimination,  so  long  as  it  would  authorize  a  divorce 
of  any  kind. 

To  a  petition  for  a  divorce  for  cruelty,  adultery  may  be 
plead  in  recrimination.1  A  husband  cannot  resist  a  divorce 
for  adultery  by  setting  up  desertion  by  the  wife.2  Where 
each  party  files  a  bill  for  divorce,  one  for  cruelty  and  the  other 
for  adultery,  and  both  charges  are  sustained,  each  will  be 
considered  a  bar  to  the  other.3 

The  defendant  in  a  divorce  suit  may  allege,  by  way  of  re- 
crimination, the  commission  by  the  plaintiff  of  any  offence 
which  is  a  cause  for  divorce.  If  both  have  a  right  to  a 
divorce,  neither  party  has.4  Recrimination  is  a  good  defence 
to  an  action  for  divorce  for  cruelty.5 

LIMITATION,  LACHES,  DELAY  AND  INSINCERITY. 

Unless  some  good  excuse  can  be  offered,  a  case  is  weak- 
ened and  sometimes  lost,  through  delay  to  bring  suit.  It  is 
especially  so  as  to  the  husband.  He  is  presumed  to  know 
his  marital  rights  and  wrongs,  and  if  he  has  a  cause  against 
his  wife,  the  necessary  presumption  will  be  that  he  will  move 
in  the  vindication  of  his  wrongs,  if  they  exist,  at  the  first 
chance.  He  may  sometimes  justify  his  neglect  or  delay  on 
the  ground  of  want  of  funds.  The  wife  is  much  more  ex- 
cusable. She  is  not  presumed  to  know  her  rights  or  the 
mode  of  redress.  It  is  a  great  task  for  her  to  go  out  into 
the  world  and  seek  redress.  Timidity,  modesty  and  unsoph- 
isticatedness,  all  restrain  her.  In  some  States  there  are 
express  statutes  of  limitation,  and  they  must  be  followed. 
In  all  chancery  practice,  laches,  or  neglect  to  sue,  is  a  potent 
defense.  There  is  no  period  of  limitation,  but,  by  analogy  to 
the  limitation  of  the  law,  equity  establishes  the  same  time 
in  analogous  cases. 

A  perfunctory   mode   of    proceeding,    when    discovered, 

>  29  Ga.  718.    2  4  Porter,  467.    8  39  Ala.  348.    *  2  Post,  347.    39  Ala.  348    6  47 
Tex.  336. 


DEFENSES.  155 

Weakens  the  case.  If  a  party,  male  or  female,  really  has 
valid  cause  of  divorce,  he  or  she  should  urge  it  with  celer. 
ity  and  earnestness,  as  if  he  or  she  was  sincere  and  resolute 
to  achieve  the  best  results. 

STATUTORY  LIMITATION. 

Action  must  be  brought  within  one  year  in  Oregon  for 
adultery  or  conviction  of  felony ;  in  Washington  for  adultery ; 
in  Idaho  after  the  termination  of  imprisonment  of  adverse 
party;  within  two  years  for  any  cause  in  New  Jersey;  in  Cali- 
fornia within  two  years  if  adultery ;  within  same  after  termi- 
nation of  imprisonment  sentence ;  in  Indiana,  same,  if  adul- 
tery. Within  three  years  for  any  cause  in  Montana ;  in  Min- 
nesota, Wisconsin  and  Wyoming,  for  adultery.  Within 
four  years  for  any  cause  in  Texas,  Nevada,  Utah,  Florida, 
Nebraska  and  Arizona.  Within  five  years  for  any  cause  in 
Illinois,  Arkansas  and  Kansas ;  for  adultery  in  Michigan,  New 
York  and  Nebraska,  and  within  five  years  from  the  commission 
of  the  act  of  adultery  in  Virginia  and  West  Virginia.  Six  years 
for  any  cause  in  New  Hampshire  and  Mississippi.  Ten  years 
for  any  cause  in  Ohio  and  North  Carolina.  In  the  Dakotas 
before  such  a  time  has  elapsed  as  to  establish  a  presumption 
of  connivance,  condonation,  collusion,  or  acquiescence. 

It  will  be  noticed  that  in  West  Virginia  the  time  com- 
mences to  run  from  commission  of  adultery.  In  all  other 
cases  and  in  all  other  places,  it  commences  to  run  only  from 
time  of  discovery,  unless  due  diligence  to  discover  was  not 
used.  Not  so  about  any  matter  of  record,  as  sentence  of 
imprisonment  or  pardon.  Then  the  time  commences  from 
its  date. 

In  cases  of  fraud,  and  the  same  principle  applies  for 
divorce,  courts  of  equity  will  not  interpose  if  a  party  slum- 
bers on  his  (or  her)  rights  unreasonably  after  the  detection  of 
the  fraud  or  the  means  afforded  of  detection.1 

Time,  however,  does  not  begin  to  run  against  a  man  or 
woman  in  cases  of  fraud  until  he  or  she  has  knowledge  of  the 

1  Angell  on  Lira.,  s.  190.  Kerr  on  Fraud,  247. 


156  MARRIAGE  AND  DIVORCE. 

fraud.  Time  begins  to  run  only  from  the  discovery,  pro- 
vided due  diligence  to  make  discovery  was  observed.  The 
statute  of  limitations  is  no  bar  in  equity  in  cases  of  unknown 
fraud.  The  right  of  the  party  defrauded  is  not  affected  by 
lapse  of  time,  or,  generally  speaking,  by  anything  done  or 
omitted  to  be  done  so  long  as  he  remains,  without  any  fault  of 
his  own,  in  ignorance  of  the  fraud  that  has  been  committed. 
Lapse  of  time  imputed  as  laches  may  be  excused  by  the  ob- 
scurity of  the  transaction  whereby  a  man  is  disabled  from 
obtaining  full  information  of  his  rights.  Time  does  not  be- 
gin to  run  against  a  man  (or  woman)  so  as  to  bar  the  remedy, 
until  he  has  full  information  of  his  rights  and  injuries,  or  has 
in  his  possession  the  means  of  knowledge,  or  at  least  has  suf- 
ficient notice  to  put  him  on  inquiry.  *  *  *  The  objection 
of  time  is  removed  so  long  as  a  man  remains,  without  any 
fault  of  his  own,  in  ignorance  of  his  rights  and  injuries,  or  is 
under  a  legal  disability,  or  so  long  as  the  dominion  or  undue 
influence  which  initiated  the  transaction  is  in  full  force.  The 
mere  fact,  however,  of  the  poverty  or  pecuniary  embarrass- 
ment of  the  injured  or  defrauded  party  is  not  a  sufficient  ex- 
cuse for  delay.1 

In  equity  fraud  is  held  to  be  an  exception  to  the  operation 
of  the  statute  until  discovery  of  the  fraud.  Fraud  is  a  suf- 
ficient answer  to  the  statute  of  limitations.3 

i  28  Miss.,  432.  18  Tex.,  774.  8  Tex.  361.2  4 Tex.,  345.  68  111.,  131.  52  111.,  301. 
104111,  155.  46  Md.,  257.  67  Me..  470  120  111.,  377.  91  Ind.,  27-  58  Ind.,  194.  41 
Barb.,  139.  25  N.  J.  Eq.,  60.  32  N.  J.  Eq.,  495.  46  Mich.,  511.  2  8  Ga.,  1.  1  Dana, 
373.  25  Ga.,  76.  40  Pa.  St.,  199.  6  Ala.,  589.  36  Cal.,  47.  31  Miss.,  265.  5  Ired.  L., 
466,  6  Jones,  L.,  520. 


V. 

FOREIGN  MAKKIAGE  AND  FOREIGN  DIVOECE. 


Judge  John  A.  Jameson,  now  deceased,  formerly  of  the 
Superior  court  in  Chicago,was  one  of  the  most  erudite  and  schol- 
arly judges  who  ever  adorned  the  bench  in  that  city.  Moreover, 
while  deprecating  the  laxity  of  divorce  law  and  the  frequency 
of  divorce  instances,  he  nevertheless,  being  obliged  to  ad- 
minister that  law  frequently,  studied  and  learned  it  as  a 
science.  An  interesting  case  came  before;  him,  involving,  to 
an  unusual  extent,  the  conflict  of  marriage  and  divorce  laws 
in  different  countries,  and  he  prepared  and  wrote  out  a  learned 
and  lengthy  opinion  citing  authorities  extensively,  and  which 
he,  being  an  especial  friend,  furnished  me  with  a  copy  of, 
which  I  here  insert. 

Madelaine  Roth  v.  Frederick  Ehman  et  al.  In  Chancery. 

MAEBIAGE. 

1.  Marriage  valid  by  laws  of  Illinois,  where  contracted,  though 
invalid  by  the  law  of  Wurtemberg,  of  which  parties  are  subject. 

2.  Parties  afterward  took  up  their  domicil  in  Wurtemberg,  and  the 
court  then  declared  such  marriage  a  nullity. 

3.  In  contest  over  real  estate  in  Illinois,  the  decree  of  the  Wur- 
temberg court  recognized  as  controlling  the  status. 

4.  Community  of  estate  created  by  contract  in  Wurtemberg  will 
be  recognized  and  enforced  in  Illinois. 

JAMESON,  J. — The  principal  facts  in  this  case  are,  that  in 
1832,  John  George  Roth,  a  subject  of  the  kingdom  of  Wurtem- 
berg, emigrated  to  Chicago,  Illinois,  and  there,  in  the  course 
of  a  business  life  of  24  years,  accumulated  the  large  property 
which  is  now  in  controversy  in  this  suit.  In  1854,  Roth  went 
back  to  Wurtemberg,  apparently,  for  a  visit  only.  Upon  his 
return  to  America,  in  1855,  he  was  accompanied  by  the  com- 
plainant, Madelaine  Moser,  a  native  and  resident  of  Alsace, 


158  MAREIAGE  AND  DIVORCE. 

then  a  French  subject,  whom  he  afterward  married  in  Chicago. 
Differences  arising  between  them,  in  1856,  they  left  the  United 
States  together,  she  going  to  reside  with  her  father  in  Stras- 
burg,  and  he  taking  up  his  abode  in  Schorndorf,  in  the  king- 
dom of  Wurtemberg.  In  1863,  Madelaine  repaired  to  Chicago, 
and  there  instituted  a  suit  for  divorce  from  her  husband. 
Learning  of  this  fact,  he  followed,  and  settled  his  difference 
with  her;  the  suit  was  dismissed,  and  they  again  left  the 
United  States,  to  which  neither  again  returned  during  Roth's 
life.  They  settled  down  in  Schorndorf,  living  together  as 
man  and  wife.  October,  1 870,  Eoth  commenced  proceedings 
in  a  court  of  supposed  competent  jurisdiction  in  Schorndorf, 
to  procure  a  decree  of  nullity  of  his  marriage  with  the  com- 
plainant, who,  in  November  following,  again  went  to  reside 
with  her  father,  in  Alsace,  either  voluntarily,  or,  as  she  con- 
tends, compelled  thereto  by  her  husband.  The  decree  was 
sought  on  the  ground  of  the  incapacity  of  Eoth  to  marry,  by 
reason  of  non-compliance  with  a  law  of  Wurtemberg,  passed 
in  1808,  declaring  void  all  marriages  of  the  subjects  of  that 
kingdom  contracted  abroad  without  the  license  of  the  king. 
April  24,  1873,  a  decree  of  nullity  was  pronounced  by  the 
Wurtemberg  court,  although,whilstthe  proceedings  were  pend- 
ing, the  law  of  1808  was  repealed. 

Madelaine  appeared  in  this  proceeding  both  in  person  and 
by  her  counsel,  and  resisted  the  entering  of  a  decree.  In 
September  following,  she  released  to  her  late  husband  all  her 
interest  in  his  property  here  and  in  Wurtemberg,  upon  receipt 
from  him  of  $8,000,  paid  to  her  in  United  States  bonds. 
About  three  months  thereafter  Eoth  married  his  second  wife, 
Amalie  Staehle,  claiming  now  to  be  his  widow,  one  of  the  de- 
fendants in  this  suit.  In  March,  1874,  there  was  executed 
between  Eoth  and  the  said  Amalie  an  instrument  in  the  nature 
of  a  post-nuptial  settlement,  called  by  the  parties  a  "marriage 
and  inheritance  contract,"  by  which,  in  accordance,  as  is 
claimed,  with  Wurtemberg  law,  the  parties  agreed  to  own  in 
common  or  as  a  community,  during  their  joint  lives,  the 
property  of  each,  Amalie  putting  in  her  portion  of  3,500 
florins,  and  Eoth  his  entire  estate,  subject  to  the  payment  of 
the  debts  of  both,  to  the  education  and  marriage  portion  of 
their  children,  and  to  the  payment  to  his  relatives  of  legacies 
to  the  amount  of  80,000  florins,  and  giving  the  right  to  sur- 
vivorship to  the  parties  severally.  This  contract  was  con- 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.  159 

firmed  by  the  Koyal  Notarial  and  Orphan's  Court,  of  Schorn- 
dorf,  on  the  first  of  April,  following.  July  12,  1872,  Eoth, 
being  sick,  though  without  apprehension  of  an  immediate 
death,  and  anxious  in  regard  to  the  ability  of  his  wife  to  carry 
out  the  terms  of  the  contract  in  favor  of  his  relatives  in  case 
of  his  death,  because  of  his  heavy  cash  outlay  in  rebuilding 
after  the  Chicago  fire,  sent  for  a  notary,  and, with  his  aid  and 
under  his  advice,  executed  an  instrument  purporting  to  con- 
vey the  title  to  his  Chicago  property  to  one  Albert  Staehle,  a 
brother  of  Amalie,  his  wife,  with  a  view,  as  it  is  claimed,  of 
enabling  him,  as  agent  for  his  sister,  to  make  sales  to  raise 
money  with  which  to  pay  the  legacies.  Nothing  being  paid 
by  Albert  Staehle,  he  was  but  a  naked  trustee,  and  the  deed 
was  not  such  in  form  as  to  convey  the  legal  title.  The  in- 
terest acquired,  if  any,  by  this  instrument,  has  moreover  been 
reconveyed  to  the  widow,  Amalie  Both.  In  the  afternoon  of 
the  day  of  the  execution  of  this  instrument,  Eoth  died  in- 
testate. Some  two  months  after  his  death,  Madelaine,  the 
complainant,  came  to  Schorndorf  from  Alsace,  upon  a  visit 
to  her  friends  there,  and,  as  she  claims,  to  her  husband's 
grave.  While  in  Schorndorf,  she  was  induced  by  friends  of 
both  parties  with  whom  she  was  stopping,  to  visit  the  second 
wife,  Amalie,  now  the  supposed  widow  of  Eoth.  Through 
these  friends,  however,  before  doing  so,  she  received  from 
Amalie  10,000  marks,  and  executed  to  her,  before  a  notary,  a 
general  release  of  all  her  rights  and  interest  in  the  property 
of  her  former  husband.  On  the  3d  of  October,  while  still  the 
guest  of  Amalie,  Madelaine  executed  to  her  a  formal  deed, 
conveying  all  her  interest  in  such  property,  and  went  with 
Amalie  to  Stuttgart  and  acknowledged  the  execution  of  the 
deed  before  the  American  consul  there  resident.  During  this 
visit  Madelaine  also  received  presents  from  Amalie,  of  some 
value.  Some  two  years  later,  Madelaine  caused  this  suit  to 
be  commenced,  and  left  Alsace  for  Chicago,  where  she  has 
since  resided. 

Her  bill  claims  that  she  was  lawfully  married  to  Eoth  in 
Illinois,  according  to  the  laws  thereof;  that  the  proceedings 
in  Wurtemberg  resulting  in  the  decree  of  nullity  of  her  mar- 
riage were  void,  or,  if  valid  there,  are  of  no  effect  here  upon 
the  property  in  Illinois ;  that  she  is  the  widow  of  Eoth,  and, 
as  such,  entitled  by  law  to  one-half  of  the  real  estate,  and  all 
the  personalty  left  by  her  husband,  notwithstanding  the  mar- 


160  .  MABRIAGE  AND  DIVORCE. 

riage  and  inheritance  contract  which  is,  as  to  her,  void,  as 
founded  upon  an  immoral  consideration ;  and  that  all  instru- 
ments purporting  to  release  or  convey  her  rights  and  interests 
in  such  property,  were  procured  from  her  by  undue  influence, 
and  upon  false  suggestions  and  representations,  and  are  in 
like  manner  void  and  of  no  effect.  The  bill  makes  the  heirs- 
at-law,  as  well  as  the  supposed  widow  of  Both,  parties,  and 
prays  that  the  complainant  may  be  decreed  to  have  title  to 
one-half  of  the  real  estate  in  Chicago,  and  that  upon  a  parti- 
tion between  her  and  the  heirs-in-law  of  said  Koth,  or  others 
entitled,  the  same  may  be  set  off  to  her  in  severalty,  and  for 
general  relief.  To  this  bill  Amalie  has  answered,  denying  all 
its  material  allegations.  Bearing  on  the  equities  of  the  other 
defendants,  the  facts  are,  that  after  the  death  of  Koth,  con- 
siderable payments  were,  made  to  them  by  Amalie  on  account 
of  the  legacies  provided  in  the  marriage  and  inheritance  con- 
tract, and  that  upon  the  representation  of  Amalie  through  her 
brother,  acting  as  her  agent  and  attorney  in  fact,  that  she 
could  not  make  the  balance  of  such  payments  without  selling 
a  part  or  all  of  the  Chicago  property,  quit-claim  deeds  were 
executed  to  her  by  all  the  legatees  of  their  rights  and  interests 
in  such  property.  In  their  answers  to  the  original  bill  filed 
by  Madelaine,  these  legatees  admit  the  allegations  made  by 
her.  And  finally,  all  the  defendants,  including  Amalie,  have 
filed  cross-bills  setting  up  several  equities,  and  praying  that 
their  rights  may  be  established  by  the  decree  of  the  court ; 
the  legatees,  moreover,  averring  that  the  quit -claim  deeds 
were  procured  from  them  by  false  representations,  and  pray- 
ing that  they  may  be  declared  to  be  of  no  effect.  Upon  the 
issued  raised  by  these  pleadings,  very  voluminous  testimony 
has  been  taken  in  Wurtemberg  and  read  upon  the  hearing, 
and  the  court  has  had  the  benefit  of  very  able  and  elaborate 
arguments  by  the  counsel  on  both  sides,  upon  the  many 
questions  of  law  and  fact  involved  in  the  record.  It  will  not 
be  possible  for  me  to  discuss  at  large,  or  even  to  touch  upon 
ail  these  questions,  and  I  shall  content  myself  with  an  ex- 
amination of  the  more  salient  and  important  of  them,  leaving 
my  judgment  upon  others  to  be  inferred  from  the  conclusions 
announced  on  the  whole  case. 

Few  causes,  I  imagine,  have  ever  arisen  involving  more 
of  the  complicated  and  interesting  problems  of  private  inter- 
national law  than  this.  By  what  law  shall  the  validity  of 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.  161 

the  two  marriages  of  the  intestate  Both,  be  determined?  By 
what,  that  of  the  decree  of  nullity  of  his  marriage  with  the 
complainant?  If  that  decree  was  valid  by  the  law  of  Wur- 
temberg, how  is  it  to  be  regarded  by  the  courts  of  Illinois  ? 
What  effect,  if  any,  is  to  be  given  to  the  marriage  and  in- 
heritance contract  between  Both  and  the  defendant,  Amalie  ? 
What,  to  such  of  the  deeds  and  releases  as  were  executed  in 
Wurtemberg,  and  what  to  those  executed  here  ?  And,  finally, 
Both,  himself  a  subject  of  Wurtemberg,  having  successful- 
ly married  an  Alsatian  woman,  a  French  subject,  in  Illinois, 
and  a  Wurtemberg  subject  in  Wurtemberg,  in  both  of  which 
countries  he  was  for  a  long  time  resident,  what  bearing,  if 
any,  do  the  nationality,  the  residence  or  domicil,  temporary 
or  permanent,  of  the  several  parties  at  the  time  of  such  mar- 
riages, have  upon  their  validity  ? 

As  the  domicil  of  Both,  and  his  wife,  the  complainant, 
will  be  an  important  factor  in  determining  these  questions,  I 
may  here  state,  as  the  result  of  all  the  evidence,  that  at  the 
time  of  their  marriage  in  Illinois,  they  were  domiciled  there ; 
that  when  they  returned  to  Wurtemberg,  in  1856,  they 
changed  this,  their  domicil,  of  choice,  to  Wurtemberg,  that  of 
Booth's  origin ;  that  at  the  time  of  the  institution  of  the  nul- 
lity suit,  in  Schorndorf,  in  that  kingdom,  Both  still  had  his 
domicil  there,  whilst  that  of  his  wife  had  been  again  changed 
to  the  domicil  of  her  origin,  Alsace,  and  that  their  respect- 
ive domicils  thereafter  remained  the  same  until  the  death  of 
Both. 

Upon  these  facts  the  first  question  is  as  to  the  validity  of 
the  Illinois  marriage.  If,  considering  the  prohibition  of  the 
law  of  Wurtemberg,  an  absolute  incapacity  to  marry  without 
the  royal  assent  attached  to  Both,  and,  if  the  marriage  was 
for  that  reason  void  here,  notwithstanding  our  law,  then  one 
of  the  principal  difficulties  in  deciding  this  case  is  removed. 
How  then  are  we  to  regard  the  Illinois  marriage,  as  valid  or 
invalid  ?  The  answer  to  this  question  must  depend  upon  the 
place  by  whose  law  such  marriage  is  to  be  tested,  whether 
Wurtemberg  or  Illinois.  Marriage  being  a  contract,  and  some- 
thing more,  to-wit :  a  change  of  relation  or  status  (Story, 
Conf.  Laws,  §§  112,  113),  there  are  three  theories  as  to  the 
place  which  ought  to  furnish  the  law  by  which  it  is  to  be  gov- 
erned :  the  first,  that  is  the  lex  loci  contractus,  the  law  of  the 
place  where  it  was  solemnized.  The  second,  that  is  the  lex 


162  MARRIAGE  AND  DIVORCE. 

domicilii,  the  law  of  the  place  where  the  parties,  at  the  time 
of  the  marriage,  were  domiciled.  The  third,  that  it  is  the 
law  of  their  domicil  of  origin,  or  of  the  place  of  their  nativity, 
which,  under  the  name  of  their  "personal  statute,'9  is  sup- 
posed to  accompany  the  parties  wherever  they  go. 

A  distinction  has  been  established,  however,  which  re- 
moves from  the  category  of  disputed  cases  all  such  as  involve 
questions  merely  as  to  the  formal  requisites,  as  distinguished 
from  the  essentials,  of  marriage.  It  is  generally  conceded  that 
the  former  are  to  be  determined  by  the  lex  loci  contractus. 
What  shall  be  referred  to  form,  and  what  to  essentials,  may 
be  thus  discriminated :  When  parties  are  not  prohibited  abso- 
lutely from  marrying,  but  from  marrying  without  certain  pre- 
liminaries, as  the  consent  of  parents,  such  prohibitions  are  to  be 
referred  to  the  form;  but  an  unconditional  prohibition,  as  in 
case  of  the  marriage  of  a  deceased  wife's  sister  by  a  man  dom- 
iciled in  England,  or  within  the  prohibited  degrees,  probably, 
in  any  Christian  country ,  would  be  referred  to  the  essentials ; 
Foote,  Priv.  Int.  Jurisp.,  p.  50. 

It  is  in  respect  to  marriage  of  which  the  essential  requi- 
sites are  drawn  in  question,  that  the  differences  expressed  by 
these  three  theories  arise.  It  is  not  necessary  to  the  decision 
of  this  case  that  I  should  propound  these  theories  at  much 
length,  or  state  the  arguments  by  which  they  are  respectively 
supported.  These  will  be  found :  Wharton,  Conf.  Laws,  2d 
Ed.,  pp.  227,  228;  Foote  vs.  Priv.  Int.  Jurisp.,  pp.  48,  52; 
Story,  Conf.  Laws,  §§  102,112,  113-121;  Dicey  on  Dom., 
200,  201.  The  theory  of  the  lex  domicilii  is  generally  accepted 
by  the  continental  civilians,  and,  since  Brook  vs.  Brook,  9 
H.  L.,  193,  by  the  English  courts.  Foote,  Priv.  Int.  Jurisp., 
pp.  48,  49. 

That  of  the  "personal  statute"  is  propounded  by  French 
and  Italian  and  some  other  continental  jurists,  while  of  the 
American  courts  it  is  said  by  Judge  Story,  that  the  prevalent 
theory  is  that  of  the  lex  loci  contractus:  Conf.  Laws,  §  113. 
But  a  single  case  has  arisen  in  our  own  State  involving  the 
question,  and  in  that  case  the  facts  were  such  as  to  leave  the 
point  practically  undecided.  It  was  that  of  McDeed  vs. 
McDeed  57  111.,  545,  where  a  marriage  celebrated  in  Ohio,  of 
a  man  under  the  age  of  eighteen,  which  marriage  was,  by  the 
law  of  Ohio,  made  voidable  by  disaffirmance  on  arrival  at  the 
age  of  eighteen,  and  which  had  been  disaffirmed  by  the  hus- 


FOREIGN  MAKRIAGE  AND  FOREIGN  DIVOECE.  163 

band's  ceasing  to  cohabit  with  his  wife  after  that  age,  was  pro- 
nounced by  our  Supreme  court  to  be  invalid,  because  it  was 
so  by  the  law  of  Ohio,  the  place  where  it  was  celebrated.  But 
it  appeared  in  evidence,  not  only  that  the  marriage  was  cele- 
brated in  Ohio,  but  that  the  parties  were  natives  of  and  domi- 
ciled in  Ohio,  though  the  husband,  after  disaffirming  the  mar- 
riage, had  moved  to  Illinois,  and  there  married  again.  The 
rule  of  decision  adopted  by  our  court  was,  therefore,  no  more 
the  lex  loci  contractus  than  it  was  the  lex  domicilii  or  the  "per- 
sonal statute  "  of  the  parties,  arising  from  their  nativity  in 
Ohio.  I  am  thus  left  at  liberty  to  apply  either  the  law  of  the 
place  of  celebration,  that  of  the  domicil,  or  the  "  personal 
statute  "  of  the  parties,  unless  constrained  by  the  authority  of 
Judge  Story,  or  of  the  cases  cited  by  him,  or,  following  his 
opinion  in  other  States,  to  adopt  the  first. 

Judge  Story  lay  sit  down  as  a  general  principle,  "that,  be- 
tween persons  sui  juris,  marriage  is  to  be  decided  by  the  law 
of  the  place  where  it  is  celebrated.  If  valid  there,  it  is  valid 
everywhere."  And  he  adds  that  "  This  doctrine  has  received 
the  most  deliberate  sanction  of  the  English  and  American 
courts."  Story,  Conf.  Laws,  §  113.  ' 

The  fact  is,  however,  that  the  doctrine  of  the  lex  loci  has 
in  the  latter  cases,  and  by  the  more  modern  authorities  in 
England,  been  distinctly  repudiated :  Brook  vs.  Brook,  9  H. 
L.,  193 ;  Foote,  Priv.  Int.  Jurisp.,  pp.  48,  49. 

I  shall  not  go  through  the  cases  decided  by  the  American 
courts,  but,  to  show  how  little  they  can  be  relied  upon  to  sus- 
tain the  assertion  of  Judge  Story,  I  will  analyze  those  cited 
by  him  as  his  authority  for  it. 

In  support  of  that  assertion,  there  are  cited  by  Judge  Story, 
nine  cases.  Of  these,  four  were  cases  of  which  no  question 
of  matrimonial  capacity  was  involved  at  all,  but  only  ques- 
tions of  a  marriage  in  fact,  or  of  a  marriage  according  to  the 
requisite  forms,  matrimonial  capacity  being  conceded,  and  it 
was  properly  held,  as  all  authorities  agree,  that  that  question 
was  to  be  determined  by  the  law  of  the  place  where  the  mar- 
riage was,  or  was  alleged  to  have  been,  celebrated.  They  are 
Patterson  vs.  Gaines,  6  How.,  550;  Philips  vs.  Gregg,  10 
Watts,  158;  Morgan  vs.  McGhee,  5  Hump.,  13;  State  vs. 
Patterson,  2  Ired.  (Law),  346. 

Five  of  the  nine  cases,  moreover,  including  three  of  the 
four  above  mentioned,  were  cases  in  which  the  marriage 


164  HABRIAGE  AND  DIVORCE. 

drawn  in  question  was  celebrated  in  the  place  where  the 
parties  were  at  the  time  domiciled  :  West  Cambridge  v.  Lex- 
ington, 1  Pick.,  506;  Button  v.  Ware,  10  Mete.,  451,  Phillips 
v.  Gregg.,  10  Watts,  158 ;  Morgan  v.  McGliee,  4  Humph.,  13  ; 
State  v.  Patterson,  2  Ired.  (Law),  346. 

These  cases  were,  therefore,  no  more  authority  for  the  ap- 
plication of  the  lex  loci  contractus  than  of  the  lex  domicilii, 
since  they  were  here  the  same.  Thero  are  thus  left  to  estab- 
lish the  doctrine  of  the  American  court*,  according  to  Judge 
Story,  but  three  cases,  and  of  these,  two  have  been  severely 
criticised  and  repudiated  by  other  courts  in  England  and 
America.  These  two  are  Medway  v.  Needham,  16  Mass.,  157, 
and  another  in  the  same  State,  decided  upon  its  authority, 
Putnam  v.  Putnam,  8  Pick.,  433.  For  the  criticism  of  Med- 
way v.  Needham  see  Brook  v.  Brook,  9  H.  L.,  193,  and  Kin- 
ney's  case,  30  Grat.,  858. 

The  remaining  case  cited  by  Judge  Story,  is  Ponsford  v. 
Johnson,  2  Blatchf.,  51,  the  decision  of  an  inferior  federal 
court.  Compare  Commonwealth  v.  Lane,  118  Mass.,  458. 

If  not  definitely  tied  down  by  the  authorities  to  accept 
the  lex  loci  contractus,  are  we  at  liberty  to  adopt  the  theory 
of  the  "personal  statute?"  This  theory  is  founded  upon  two 
principles  which  are  not  applicable  to  the  jurisprudence  of 
this  country;  first,  that  allegiance  is  perpetually  due  from 
the  subject  to  his  native  country,  and  that  consequently  a 
matrimonial  incapacity  affixed  to  him  in  that  country  re- 
mains attached  to  him,  as  long  as  he  lives,  whether  at  home 
or  abroad ;  and,  secondly,  that  in  determining  one's  capacity 
or  incapacity,  his  nationality  or  place  of  nativity  furnishes 
the  rule  of  decision.  In  respect  to  the  latter,  it  may  be  said 
that  the  principle  of  nationality  may  properly  be  applied  to 
the  subjects  or  citizens  of  countries  whose  municipal  laws  are 
co-extensive  with  the  national  territory,  and  not,  where,  as  in 
ours,  there  are  different  laws  in  different  States.  Thus, 
Italy  and  France  have  matrimonial  laws  that  govern  all 
Italian  or  French  subjects,  but  in  the  United  States,  matri- 
monial capacity  is  determined,  not  by  federal,  but  by  State 
laws,  so  that  when  it  is  determined  that  a  man  is  a  citizen  of 
the  United  States,  nothing  is  thereby  settled  as  to  his  matri- 
monial capacity,  since  there  is  nothing  in  the  federal  laws 
upon  that  subject. 

So  in  respect  to  the  first  principle,  nothing  is  better  set- 


FOREIGN  MAERIAGE  AND  FOKEIGN  DIVORCE.          165 

tied  in  our  law  than  that  allegiance  is  not  perpetual,  and 
that  our  courts  will  not  recognize  the  consequences  that  flow 
from  the  contrary  hypothesis.  When  an  immigrant  of  for- 
eign birth  settles  amongst  us,  we  do  not  ask  him  under  what 
incapacities  he  may  have  labored  in  the  country  where  he  was 
born,  when  the  point  in  question  is  whether  he  may  here 
contract  a  marriage,  since  we  assume  that  he  is  at  liberty,  at 
will,  to  cast  off  his  foreign  citizenship  and  its  burdens  and 
limitations,  and  that,  for  the  enjoyment  of  civil  rights  here, 
he  intends  to  do  so,  until  the  contrary  appears.  Dorsey  v. 
Dorsey,  7  Watts,  349. 

If  compelled  to  choose,  then,  between  the  three  theories 
stated,  rejecting  that  of  the  "personal  statute,"  as  opposed 
to  our  national  traditions  and  policy,  the  weight  of  authority 
as  well  as  of  reason  seems  to  lie  on  the  side  of  the  lex  domi- 
cilii.  Whether,  were  Judge  Story  now  living,  such  would 
not  also  be  his  opinion  upon  the  present  state  of  the  author- 
ities, it  would,  perhaps,  be  idle  to  speculate,  but  certain  it  is 
that  it  was  that  of  the  editor  of  the  6th  edition  of  his  Con- 
flict of  Laws,  the  late  eminent  judge  and  legal  writer,  Mr.  Ked- 
field.  See  his  comment  on  Brook  v.  Brook,  9  H.  L.,  193,  in 
Confl.  Laws,  §  124  b. 

But  whether  the  law  of  the  domicil,  the  lex  loci,  the 
"  personal  statute,"  be  applied  in  any  particular  case,  we 
should  recognize  the  fact  that  the  rule  of  decision  must 
really  be  the  lexfori.  That  is,  the  law  for  the  case  in  hand 
must  ever  be  that  of  the  country  whose  tribunal  is  to  pass 
upon  the  question,  since,  if  the  place  of  birth,  or  of  the 
domicil  of  the  party,  or  of  the  celebration  of  the  marriage, 
be  different  from  that  of  the  forum,  its  law  could  have  no 
extra-territorial  operation,  and  could  become  the  rule  of  de- 
cision only  by  its  being  recognized  as  a  part  of  the  custom- 
ary law  of  the  country  in  which  the  court  is  sitting.  For, 
what  Phillimore  says  of  divorce,  is  equally  applicable  to 
marriage :  "It  seems  clear,  upon  all  sound  principles  of 
jurisprudence,  that  the  forum  can  only  administer  the  lex 
/on.'  "  IV.  Int.  Law,  p.  327,  §  499.  See,  to  the  same  effect, 
Birtwhistle  v.  Vardill,  7  Cl.  &  Fin.,  895,  per  Abbott  &  Hol- 
royd,  JJ. 

Inasmuch,  therefore,  as  the  prohibition  against  marrying 
without  the  royal  assent,  embodied  in  the  law  of  Wurtem- 
berg,  although  it  created  in  Both  an  absolute  incapacity  to 


166  MAERIAGE  AND  DIVOKCE. 

marry  in  violation  of  its  terms,  while  domiciled  there,  did 
not  create  such  an  incapacity  here  as  to  make  null  and  void 
his  marriage  with  the  complainant ;  such  marriage,  as  to 
him,  was  valid;  since,  judged  by  either  the  lex  loci  contmctus, 
or  by  the  lex  domicilii,  it  was  valid,  as  the  parties  were  both 
domiciled  and  married  in  Illinois.  So,  as  to  the  complain- 
ant— her  matrimonial  capacity  never  having  been  doubted — 
the  marriage  was  valid,  even  admitting  that  she  had  no  dom- 
icil  in  Illinois,  since  it  was  duly  solemnized  by  pastor 
Hartman,  according  to  the  forms  prescribed  in  Illinois,  the 
place  of  its  celebration. 

The  next  question  relates  to  the  validity  of  the  subse- 
quent marriage  of  Koth  to  the  defendant,  Amalie ;  or,  since 
no  objection  can  be  raised  to  it  in  point  of  form,  to  the  va- 
lidity of  the  decree  of  nullity  of  the  previous  marriage, 
upon  which  depended  the  capacity  of  Koth  to  contract  such 
second  marriage.  For,  to  decide  that  the  Illinois  marriage 
is  valid  is  not  equivalent  to  deciding  that  the  Wurtemberg 
marriage  is  void.  The  Illinois  marriage  might  be  valid 
here  if  drawn  in  question  directly  in  our  courts,  and,  on  the 
principle  just  stated,  be  invalid  in  Wurtemberg  when  tested 
by  its  courts  applying  the  law  of  that  kingdom  declaring  it, 
if  contracted  without  the  royal  assent,  void.  And  the  Illi- 
nois marriage,  tried  by  Illinois  law,  and  in  an  Illinois  court, 
might  be  valid,  and  the  decree  of  nullity  in  the  Wurtemberg 
court  be  valid  and  effectual  also  to  annul  it,  because  the 
Illinois  marriage  was  invalid  by  Wurtemberg  law  and  in  the 
Wurtemberg  courts. 

It  is  a  general  rule  that  all  the  principles  applicable  by 
private  international  law,  to  divorces,  are  applicable  equally 
to  decrees  of  nullity. 

1  Bishop,  Mar.  &  Div.,  §  354;  2  do.  §755;  Savigny 
(Guthrie)  §  399,  p.  366 ;  Wharton,  Conf.  Laws  (1st  Ed.)  § 
213 ;  Story,  Conf.  Laws,  §  596. 

The  last  author  asserts  the  rule,  in  substance,  but  with  a 
qualification  not  affecting  this  case. 

To  this,  however,  there  is  one  exception ;  it  is  not  to  be 
presumed  in  suits  for  nullity  of  marriage,  as  in  proceedings 
for  divorce,  that  the  domicil  of  the  wife  is  that  of  the  hus- 
band. This  follows  from  the  nature  of  suits  for  nullity, 
which  proceed  upon  the  ground  that  the  woman  never  was 
the  wife  of  the  man,  her  supposed  husband.  The  decree  of 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.          167 

nullity,  will,  therefore,  be  considered  on  the  authorities,  save 
as  to  the  point  of  complainant's  domicil,  as  if  it  had  been 
one  for  a  divorce  a  vinculo. 

To  determine  the  validity  of  the  decree  of    nullity,    we 
must  consider : 

1.  The  nature  of  a  divcrco,  or  other  act,  sundering  the 
marriage  relation. 

2.  The  question  of  the  jurisdiction  of  the  Wurtemberg 
court  to  pronounce  the  decree  in  this  case. 

3.  If  it  had  jurisdiction,  the  effect,  if  any,  of  such  de- 
cree beyond  the  territorial  limits  of  Wurtemberg. 

1.  As  to  the  first  question :     Divorce  is  the  dissolution, 
or  partial  suspension  by  law,  of  the  marriage  relation.     2 
Bish.,  M.  &  D.,  §  225;  Dicey  on  Dom.,  349-351.      The    dis- 
solution is  styled  a  divorce,  a  vinculo  matrimonii;  a  partial 
suspension,  a  divorce  a  mensa  et  thoro.     As  there  is  no  ques- 
tion here  of  anything  but  a  complete  separation  or  dissolu- 
tion of  the  de  facto  marriage  relation,  reference  will  only  be 
made  to  that.       Marriage  being  not  only  a  contract,  but  the 
creation  of  a  status,  divorce  is  the  annulment  at  once  of  the 
contract  and  the  status.       Foote  Priv.  Int.  Jurisp.  pp.  473- 
475 ;   1  Burge,  Col.  &  For.  Laws,  618.       And  this  principle 
may,  without  impropriety,  be  applied  to  the  status  resulting 
from  a  marriage  de  facto  which  a  decree  of  nullity  declares 
to  be  void.      As  the  contract  of  marriage,  which   precedes 
the  act  of  solemnization,  is  thereupon  merged  in  the  result- 
ing  status,  the  latter  is   in   substance   the   sole    remaining 
factor,  and  can,  therefore,  be  dealt  with  only  by  the  tribunals 
having  rightful  jurisdiction  over  status.      Dicey   on  Dom., 
349-351. 

2.  This  brings  us  to  the  second  question  as  to  the  juris- 
diction of  the  Wurtemberg  court  to  pronounce  the   decree 
of  nullity.     Jurisdiction  may  be  considered  as  a  question  of 
law,  touching  the  legal  requisites,  or  as  a  question  of  fact, 
turning  on  the  circumstances  of  its  attempted  assertion  in 
the  particular  case.      Jurisdiction,  as  a  legal   question,  is 
power  to  examine  into  and  decide  the  questions  of  law  and 
fact  involved  in  a  cause ;    and  to  it  are  necessary  two  things  : 
that  the  court  should  have  power  to  consider  and  determine 
the  subject-matter  in  hand,  and  that  it  should  have  all  the 
parties    to   be    affected  by    its  decision  before  it.     In  other 
words,  to  pronounce  a  valid  judgment  the  court  must  have 


168  MARRIAGE  AND  DIVORCE. 

jurisdiction  both  of  the  subject  matter  and  of  the  person. 
The  subject  matter  here  is  divorce,  and,  in  relation  to  juris- 
diction,  the  first  inquiry  is,  to  what  courts  does  jurisdiction 
to  render  decrees  of  divorce  belong  ?  It  is  a  general  prin- 
ciple that  jurisdiction  in  matters  of  divorce  depends  upon 
the  domicil  of  the  parties  to  a  marriage  at  the  time  of  the 
commencement  of  proceedings  for  divorce.  Hence,  it  is 
laid  down  by  the  best  authorities,  that  the  divorce  courts  of 
any  country  where  such  parties  are  then  domiciled,  have 
jurisdiction  to  dissolve  their  marriage,  and  that  no  court  of 
any  other  country  has  jurisdiction  to  dissolve  their  marriage. 
Dicey  on  Domicil;  Kule,  46,  pp.  225-226:  Wharton  Conn. 
Laws,  Sees.  224-239 ;  (1st  Ed.) ;  Story  Confl.  Laws,  Sees. 
228-229,  230a,  etc.;  Savigny  Priv.  Int.  Law  (Outline's  Ed.), 
Sec.  379 ;  2  Bishop  M.  &  D.,  Sec.  137;  IV.  Phillimore  Int. 
Law,  Sec.  491-521;  Dorsey  vs.  Dorsey,  7  Watts,  349;  Stra- 
der  v.  Graham,  10  Howe,  82 ;  Kinnier  v.  Kinnier,  45  N.  Y., 
535;  Cheever  v.  Wilson,  9  Wai.,  108;  Maguire  v.  Maguire, 
7  Dana,  181 ;  Wilson  v.  Wilson,  L.  K.,  2  P.  &  D.,  435,  442; 
Shaw  v.  Gould,  L.  R,  3  H.  L.,  55,  85. 

Accordingly,  where  a  marriage,  celebrated  in  Massachu- 
setts, has  been  dissolved  in  Vermont,  upon  a  suit  by  the 
husband  for  a  divorce  for  the  cause  of  extreme  and  repeated 
cruelty  of  his  wife  (a  cause  inadmissable  by  the  laws  of  Mas- 
sachusetts), it  appearing  that  the  parties  had  not  at  the 
time  any  permanent  domicil  in  Vermont,  but  that  the  hus- 
band had  gone  there  for  the  purpose  of  obtaining  a  divorce, ^ 
the  divorce  was  held  a  mere  nullity,  upon  the  ground  that 
there  was  no  real  change  of  domicil.  (Hanover  v.  Turner, 
14  Mass.,  227,  231.)  So,  where  the  question  arose  in  the 
same  State  whether  a  decree  of  divorce,  rendered  under  cir- 
cumstances precisely  similar — save  that  both  parties  were 
at  the  time  bona  fide  domiciled  in  Vermont  —  was  valid  or 
not,  it  was  held  in  the  affirmative,  upon  the  ground  that  the 
law  of  the  actual  domicil  must  regulate  the  right.  Barber 
v.  Koot,  10  Mass.,  265. 

See,  also,  to  the  same  effect :  Clark  v.  Clark,  8  Gush., 
385;  Harteau  v.  Harteau,  14  Pick.,  181;  Lyon  v.  Lyon,  2 
Gray,  269;  Kinnier  v.  Kinnier,  45  N.  Y.,  535. 

Asser,  the  latest  German  authority — Das  Internationale 
Privatrecht,  p.  67 — approves  the  principle  established  by 
Barber  v.  Root,  though  he  criticizes  the  doctrine  of  Sewell, 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.          169 

J.,  who  wrote  the  opinion,  as  to  the  penal  nature  of  decrees 
of  divorce. 

Eecurring  to  the  requisite  of  domicil  to  give  jurisdic- 
tion: In  some  countries,  our  own  State  among  them,  a 
residence,  less  than  that  necessary  to  establish  an  actual 
domicil,  gives  the  right  to  institute  proceedings  for  a 
divorce.  It  is  a  general  rule,  however,  that  the  tribunals  of 
a  country  have  no  jurisdiction  in  a  proceeding  for  divorce, 
wherever  the  offense  may  have  occurred,  if  neither  of  the 
parties  has  an  actual  bona  fide  domicil  within  its  territory. 
2  Bishop,  M.  &  D.,  §  144.  An  exception  is  made  in  favor 
of  a  wife  compelled  to  live  apart  from  her  husband  by  the 
character  of  his  offense,  and  she  may,  it  is  said,  acquire  a 
forensic  domicil  separate  from  that  of  her  husband.  Whar- 
ton  Confl.  Laws  (2d  Ed.),  §  224,  note  3.  Cheever  v.  Wilson, 
9  Wai.,  108. 

It  is  also  sufficient  that  one  of  the  parties  has  an  actual 
domicil  in  the  country  where  the  proceeding  is  commenced. 
2  Bishop,  M,  &  D.,  §  155;  IV  Phil.  Int.  Law,  §  497. 

The  second  legal  requisite  to  jurisdiction,  relates  to  the 
presence  before  the  court  of  the  parties  to  be  affected  by  the 
proceedings.  It  is  a  maxim  of  international  jurisprudence, 
founded  upon  the  most  obvious  principles  of  justness  and 
fairness,  that  no  judgment  or  decree  is  valid  if  the  party 
against  whom  it  is  rendered  did  not  have  his  day  in  court. 
The  first  duty,  therefore,  of  a  party  suing  another  is  to  bring 
him  before  the  tribunal  selected  to  try  the  issue  between 
them.  This  is  done  by  some  sort  of  notice  to  him,  season- 
ably given,  that  application  will  be  made,  at  a  day  and  place 
named,  to  the  court  then  and  there-  sitting,  for  the  desired 
judgment. 

The  details  of  the  process  or  notice  necessary,  as  well  as 
the  forms  of  the  procedure  and  of  the  remedy,  are  matters 
of  positive  regulation,  and  form  part  of  the  lexfori.  Story, 
Conf.  Laws,  §§  556,  557.  For  parties  domiciled  in  the 
country  of  the  forum,  a  service  in  a  special  mode,  not 
amounting  to  actual  notice  or  to  service  of  process,  may 
found  the  jurisdiction.  Thus,  where  husband  and  wife  were 
domiciled  in  Louisiana,  and  the  wife  departed  the  State  and 
took  up  her  residence  in  New  York,  a  divorce,  granted  to  the 
husband  in  Louisiana,  upon  a  process  substituted  by  statute 
for  a  personal  service,  though  the  wife  did  not  appear,  was 


170  MAKRIAGE  AND  DIVOECE. 

held  by  the  New  York  Court  of  Appeals  to  be  valid.    Hunt  v. 
Hunt,  72  N.  Y.,  217. 

So,  where  the  parties  were  "resident"  (another  part  of  the 
opinion  speaks  of  them  as  "domiciled")  in  Indiana,  and  the 
wife  deserted  her  husband  and  went  to  Missouri ;  a  divorce 
procured  by  him  in  Indiana,  upon  a  publication  of  a  notice 
in  a  newspaper  under  an  order  of  court,  pursuant  to  law, 
was  pronounced  valid  by  the  Supreme  court  of  Missouri,  in 
a  suit  brought  in  Missouri  by  the  divorced  wife  for  dower 
in  a  lot  of  land  conveyed  by  her  husband  to  the  defendant. 
Gould  v.  Crow,  57  Mo.  200. 

Between  these  sorts  of  service,  however  good  by  special 
statute  in  a  particular  State,  and  service  internationally 
good,  there  is  a  well  recognized  distinction.  No  service  is 
internationally  good  which  does  not,  in  fact,  inform  the  de- 
fendant of  the  time  and  place  where  and  when  judgment  will 
be  demanded  against  him.  If  it  do  this,  the  service  may  be 
good,  though  the  defendant  be  a  non-resident  of  the  State. 
Wharton,  Conf.  Laws,  §  236.  And  although  no  process 
was  served  upon  the  defendant,  if  he  personally  appear  to 
the  action,  the  judgment  will  be  good;  Loud  v.  Loud,  10 
Keporter,  113;  or  if  he  submit  to  the  jurisdiction  by  ap- 
pearance and.  taking  practical  steps  in  the  cause;  Foote, 
Priv.  Int.  Juris,  p.  70.  And  it  is  not  necessary  to  an  ap- 
pearance that  the  party  should  present  himself  in  person; 
it  may  be  by  his  attorney,  which  is  indeed  the  only  proper 
mode  for  persons  sui  juris. 

Now,  did  the  facts,  on  which  the  Wurtemberg  court  as- 
serted jurisdiction,  conform  to  these  principles  ? 

Two  sources  of  evidence  as  to  these  facts  exist :  one,  the 
record  of  the  proceedings  of  that  court,  and  the  other,  the 
testimony  of  witnesses  bearing  upon  it.  For  the  present, 
assuming  that  the  record  of  the  Wurtemberg  court  has  been 
sufficiently  proven,  and  may  be  here  considered  as  evidence,  are 
its  recitals  sufficient  to  show  full  jurisdiction  in  the  court? 
Doubtless  the  document  varies  greatly  from  the  record  in  a 
cause  in  an  American  court  of  a  similar  jurisdiction.  But 
it  is  evident  that  the  court  not  only  assumed  to  have,  but 
had,  jurisdiction  of  proceedings  for  divorce.  The  record 
shows  a  petition  filed  in  a  lower  court ;  a  reference  by  that 
to  a  higher,  by  which  a  formal  order  was  entered,  that  juris- 
diction be  entertained  by  the  court  in  question  here  of  a  suit 


FOREIGN  MABKIAGE  AND  FOREIGN  DIVORCE  171 

for  the  nullification  of  the  petitioner's  marriage ;  that  both 
of  the  parties  be  notified  of  the  day  of  the  trial,  which  was 
fixed  by  the  same  order,  and  that  they  select  proctors  of 
the  court  to  assist  them  thereat.  It  appears,  also,  that  a 
summons  to  the  defendant  therein  was  dispatched  by  the 
court  with  letters  rogatory  addressed  to  the  court  of  First 
Instance,  at  Strasburg,  in  Alsace,  with  a  request  that  the 
summons  might  be  served  upon  her,  and  returned ;  that  such 
return  was  made,  on  which  was  endorsed  an  acknowledg- 
ment by  such  defendant,  the  complainant  here,  that  she 
had  received  the  summons,  appointing  the  time  and  place  of 
trial,  and  that  she  desired  to  be  assisted  at  such  trial  by 
Proctor  Mosthaf .  At  the  time  and  place  of  trial  appointed 
the  record  shows  that  Madelaine  not  only  was  represented  by 
the  Proctor  Mosthaf,  named  by  her,  but  that  she  was  person- 
ally present  in  court.  So  far  as  to  jurisdiction  of  the  defend- 
ant, Madelaine. 

Of  the  complainant,  jurisdiction  was  claimed  generally  on 
account  of  the  two-fold  relation  sustained  by  him,  first  as 
subject  and  citizen  of  Wurtemberg,  and,  secondly,  as  domi- 
ciled in  Schorndorf,  a  village  of  Wurtemberg.  Upon  his 
citizenship  a  distinct  issue  appears  from  the  decree  to  have 
been  made  and  decided  by  the  court :  Both  claiming  that  he 
was  a  citizen  of  Wurtemberg,  and  had  never  renounced  his 
nationality  as  a  Wurtemberger,  and  his  wife  contending 
that  he  had  become  a  citizen  of  the  United  States.  No 
proof  of  this  latter  averment  being  made,  but  the  contrary 
having,  according  to  the  decree,  been  by  the  defendant  ad- 
mitted at  the  hearing,  the  court  found  that  he  had  never 
renounced  his  nationality,  or  become  an  American  citizen. 
It  appears,  also,  that  he  was  actually  served  with  a  sum- 
mons; a  step  that,  according  to  our  notions,  was  wholly 
unnecessary,  since  he  was  the  person  who  presented  the 
original  petition. 

Now,  considering  that  the  remedies  and  the  forms  of  the 
proceedings  for  a  divorce,  or  decree  of  nullity,  are  to  be 
governed  by  the  law  of  the/oritm,  IV,  Phil.  Int.  Law,  §  449, 
pp.  327-8,  it  seems  that,  so  far  as  the  recitals  of  the  decree 
are  concerned,  the  court  had  full  jurisdiction,  as  well  of  the 
subject-matter  as  of  the  parties ;  and  this,  whatever  we  may 
think  about  the  domicil  of  Madelaine,  that  of  Both 
sufficiently  founding  the  jurisdiction  so  far  as  the  same 


172  MARRIAGE  AND  DIVORCE. 

depended  upon  domicil;  and  whatever  may  have  been  the 
force  of  the  summons  served  upon  him  or  served  upon  her 
in  the  manner  stated  in  compliance  with  the  letters  roga- 
tory.  Are  the  recitals  of  the  decree,  then,  to  be  accepted 
as  competent  evidence,  and  is  the  decree  sufficiently  proven  ? 
Conceding  that  the  first  question  is  to  be  determined  by  the 
law  of  Illinois,  there  can  be  no  doubt,  I  think,  that  the 
recitals  must  be  taken  as  true,  and  the  findings  of  the  court 
to  have  been  justified  by  the  evidence.  This  is  a  collateral 
proceeding,  and  it  is  perfectly  settled  that  unless  upon  the 
face  of  the  record  of  a  judgment  it  appears  that  the  findings 
of  the  court  or  the  recitals  of  the  decree  were  not  supported 
by  the  evidence,  or  that  the  assertion  of  jurisdiction  by  the 
court  was  not  justified  by  the  facts,  the  decree,  if  of  a  court 
of  general  jurisidiction,  will  be  held  to  be  a  valid  one,  when 
questioned  collaterally. 

Saying  nothing,  therefore,  now  of  the  effect  of  the  decree, 
its  findings  and  recitals  must  be  accepted  as  prima  facie  true, 
nothing  appearing  on  the  face  of  the  record  to  contradict 
them.  I  am  of  opinion  also  that  the  decree  has  been  suffi- 
ciently proven.  Not  being  within  the  act  of  Congress,  or 
covered  by  treaty  stipulations,  the  decree  stands  on  the  foot- 
ing of  foreign  judgments  generally,  and  may  be  proven  by  an 
examined  copy  properly  authenticated  under  the  seal  of  the 
State  in  which  it  was  rendered.  1  Greenl.  Evid.,  §§  507, 
508;  2  Phil.  Evid.,  (C.  and  H.  notes)  417  and  note;  Lincoln 
v.  Battell,  6  Wend.,  482;  Hill  v.  Packard,  5  Wend.,  387, 
391;  Church  v.  Hobart,  2  Cranch,  187,  228;  Maturin  v. 
Bickford,  6  N.  H.,  567. 

According  to  the  same  authority  it  may  be  proven  by 
a  sworn  copy. 

The  rule  is  the  same,  when,  as  in  this  case,  the  doc- 
ument is  an  original  paper  in  the  hands  of  a  person  resi- 
dent abroad  who  refuses  to  attach  such  original  to  his 
deposition,  when  requested  so  to  do.  It  may  be  proven  by 
a  sworn  copy,  made  by  him  or  a  third  person,  and  at- 
tached to  such  deposition.  Fisher  v.  Green,  95  111.,  98. 

Such  a  sworn  copy  has  been  made  and  duly  authenti- 
cated by  the  deposition  of  the  party  making  the  same,  and 
is  clearly  admissible  in  evidence. 

So  much  for  the  record.  Besides  that,  we  have  bear- 
ing on  the  question  of  jurisdiction,  the  evidence  of  the  expert 


FOREIGN  MAEBIAGE  AND  FOREIGN  DIVORCE.          173 

witnesses,  Lautenschlager  and  Schott,  lawyers  resident  in 
Wurtemberg.  From  their  testimony  it  appears  as  a  fact, 
that  the  tribunal  pronouncing  the  desree  of  nullity  by  the 
law  of  Wurtemberg,  had  general  jurisdiction  of  the  subject 
of  divorces  and  proceedings  for  nullification  of  marriage; 
that  the  steps  taken  to  bring  the  parties  before  the  court 
were  by  such  law  sufficient  to  give  the  court  jurisdiction 
of  them,  and  that  the  decree  was  valid  and  binding  in  the 
kingdom  where  rendered,  in  all  courts  and  places.  There 
can  be  no  doubt  that  this  evidence  is  competent,  and  upon 
this  question,  decisive. 

Certainly,  therefore,  so  far  as  the  kingdom  of  Wurtem- 
berg is  concerned,  the  decree  fixed  definitely  the  status  of 
Both  and  the  complainant.  It  remains  to  inquire,  what 
was  its  effect  in  Illinois?  The  effect  of  a  decree  or  judg- 
ment may  be  considered  with  respect,  first,  to  its  conclu- 
siveness  as  evidence,  and,  secondly,  to  the  consequence  which 
it  entails  upon  the  status  or  the  rights  of  the  parties  to  it. 
As  to  the  first  point,  already  partly  considered,  it  is  a 
general  rule  that  the  judgment  of  a  foreign  court  having 
jurisdiction  of  the  subject-matter,  and  of  the  parties,  is  con- 
clusive everywhere.  2  Am.  Lead.  Cases,  615. 

It  is  exarninable  for  error  in  law  only  by  a  court  hav- 
ing a  right  to  entertain  appeals  from  the  court  rendering 
it.  Foote  Priv.  Int.  Jurisp.,  450. 

Judgments  rendered  in  the  United  States  are,  by  the 
federal  statute  of  May  26,  1790,  made  as  conclusive  in 
other  States  of  the  Union  as  domestic  judgments.  There 
is,  nevertheless,  some  contrariety  of  practice  both  here  and 
abroad,  when  it  is  alleged  that  the  judgment,  tested  by 
international  principles,  is  unjust  by  reason  of  fraud  in 
procuring  it,  or  of  want  of  complete  jurisdiction  in  the 
court  rendering  it.  In  some  of  our  States,  if  the  judgment 
contains  recitals  sufficient  to  sustain  the  jurisdiction,  no 
averment  is  allowed  to  contradict  them.  In  others,  such 
averment  is  permitted,  or  permitted  if  it  be  of  facts  tend- 
ing to  impeach  the  judgment,  but  not  directly  contradict- 
ing it  by  flying  in  the  face  of  its  estoppels.  2  Am.  Lead. 
Cases,  611-614;  Freeman  Judgm'ts,  §  563. 

In  our  own  State  the  stricter  rule  has  been  expressly  sanc- 
tioned by  our  Supreme  court  in  numerous  cases.  Chipps  v. 
Yancey,  Breese  19 ;  Bust  v.  Frothingham,  Ib.  331 ;  Welch  v. 


174  MARRIAGE  AND  DIVORCE. 

Sykes,  3  Gilm.,  197;  Westcottv.  Brown,  13  111.,  83;  Zeppv. 
Hagar,  70  111.  223. 

And  compare  Binieler  v.  Dawson,  4  Scam.,  536;  Goddard 
v.  Gray,  L.  E.  6  Q.  B.,  139,  150. 

In  England  this  rule  as  to  foreign  judgments  is  finally  set- 
tled to  be  that  they  are  conclusive,  unless  it  appear  that  the 
court  had  not  jurisdiction  to  render  them,  or  unless  they  were 
obtained  by  fraud  Foote  Priv,  Int.  Jurisp.  463-467. 

In  the  United  States  the  tendency  is,  it  is  believed,  to 
adopt  the  rules  as  to  foreign  judgments,  thus  established  in 
England;  and  the  Illinois  Supreme  court,  in  a  late  case, 
Baker  v.  Palmer,  83  111.,  568,  expressly  sanctioned  it  where 
the  conclusiveness  of  a  Canadian  judgment  was  drawn  in 
question. 

Decrees  of  divorce  pronounced  by  foreign  tribunals  having 
full  jurisdiction  of  the  subject-matter,  and  of  the  parties 
domiciled  in  the  country  of  the  forum,  being  in  the  nature  of 
decrees  in  rent,  are  generally  regarded  as  conclusive  evidence 
of  a  change  of  the  marriage  status.  Story  Conf.  Laws,  §§ 
201,  202;  Dicey  on  Dom.  233-240,  349-351;  Freeman, 
Judgm'ts,  §§  579,  610;  IV,  Phil.  Int.  Law,  §  953;  2  Bishop 
Mar.  &  Div.,  §  755. 

These  principles,  however,  do  not  determine  the  real  ques- 
tion here.  What  consequences  follow  such  a  decree  in 
respect  to  status  in  other  countries  ?  Does  the  changed  status 
adhere  to  the  parties  when  beyond  the  jurisdiction  of  the 
court  which  rendered  the  decree  ?  Of  the  three  theories  of 
divorce  described  by  Dicey  (on  Dom.,  349-351),  the  con- 
tract theory,  which  regards  it  as  a  remedy  for  a  breach  of 
contract ;  the  penal  theory,  which  regards  it  as  a  penalty  for 
a  crime  or  misdemeanor;  and  the  status  theory,  which 
regards  it  as  a  dissolution  of  a  status  or  relation ;  accepting 
the  latter  as  the  most  rational  and  satisfactory,  it  is  clear 
that  the  effect  of  a  decree  of  divorce,  rendered  by  n  compe- 
tent court  of  the  matrimonial  domicil,  is  an  absolute  disso- 
lution of  the  marriage  status  throughout  the  world. 

Mr.  Phillimore,  vindicating  this  theory,  says  of  foreigners, 
who  come  into  a  State  with  a  particular  status,  resulting 
from  a  decree  of  divorce  rendered  in  the  State  of  their  foreign 
domicil,  "that  the  only  ground  upon  which  this  status  could 
be  refused  recognition  would  be,  that  it  was  contrary  to  the 
public  policy  or  morality  of  the  new  State ; "  and  he  adds, 


FOKEIGN  MA.KKIAGE  AND  FOKEIGN  DIVOKCE.          175 

"But  it  seems  clear  that  the  residence  in  that  State  of  two 
foreigners,  as  single  persons,  is  not  a  case  of  this  description. 
What  the  former  status  of  these  parties  was,  is  a  matter  of 
private  history,  in  no  way  affecting  the  State  in  which  they 
happen  to  be  now  resident :"  IV  Phil.  Int.  Law,  pp.  323,  328 ; 
Harvey  v.  Farnie,  L.  E.  5  P.  D.  153. 

And,  in  truth,  if  Mr.  Phillimore's  suggestion  be  well 
founded,  the  objection  could  be  not  so  much  to  the  assump- 
tion of  new  relations  by  the  divorced  parties,  inconsistent 
with  it. 

Apply  the  principle  thus  stated  to  the  case  now  in 
question.  Had  Both  and  the  complainant,  after  the  dissolu- 
tion of  their  de  facto  marriage  in  Wurtemberg,  removed  to 
Illinois  and  resided  here  as  single  persons,  no  State  policy  or 
rule  of  morality  would  have  been  violated,  and  unquestion- 
ably the  decree  would  have  been  recognized  as  valid.  If  any 
objection  could  have  arisen  to  that  decree,  it  must  have  been 
on  the  ground  just  stated  as  to  new  relations,  or  on  grounds 
involved  in  the  following  question,  also  discussed  by  Philli- 
more.  That  question  is :  "  Ought  a  State,  the  law  of  which 
permits  divorce  upon  certain  grounds,  to  recognize  a  foreign 
divorce,  which  had  been  obtained  upon  other  grounds,  by  its 
own  subjects?  " 

Now,  this  question  does  not  describe  the  facts  in  the  case 
before  the  court,  only  because  the  parties  are  not  and  never 
were  American  subjects  or  citizens.  As  to  this  question  the 
learned  author  says :  "The  answer  must  depend  upon  the 
nature  of  the  theory  which  the  State  applies  to  foreign 
divorces.  A  State  which  holds  that  the  incapacity  to  be 
divorced,  except  for  reasons  admitted  by  the  original  matri- 
monial domicil,  was  of  the  nature  of  a  personal  statute, 
ought  certainly  to  hold  a  foreign  divorce,  on  any  other 
grounds  than  those  admitted  by  the  original  matrimonial 
domicil,  to  be  null  and  void."  To  this  it  is  enough  to  say, 
that  the  doctrine  of  the  personal  statute  is  accepted  by  no 
American  court  or  authority,  in  the  sense  attended,  if  an 
absolute  incapacity  created  by  foreign  law,  and  by  virtue 
thereof  attending  the  person  wherever  he  goes.  Phillimore 
continues :  "So,  a  State  which  holds  that  a  divorce  is  a 
matter  affecting  public  order  and  morality  is  not  bound 
to  recognize  a  foreign  divorce  between  its  subjects  founded 
upon  reasons  which  it  had  not  sanctioned  by  its  own  juris- 


176  MARRIAGE  AND  DIVORCE. 

prudence,  whether  these  subjects  had  or  had  not  been,  at  the 
time  of  obtaining  the  foreign  divorce,  domiciled  in  the  State 
which  granted  it." 

Two  observations  in  respect  to  this  assertion,  occur  to  me : 
It  supposes,  as  before  stated,  that  the  divorce  abroad  had 
been  obtained  by  subjects  of  the  State  called  on  to  recognize 
it,  and,  second,  in  Illinois,  divorces  have  never  been  held  to 
be  a  matter  affecting  public  order  or  morality  in  any  such 
sense  as  that  recognition  should  be  refused  to  them,  when 
decreed  abroad,  for  causes  not  admitted  by  our  law,  between 
citizens  of  the  State,  domiciled  in  the  place  where  the  decrees 
were  rendered.  On  the  contrary,  such  divorces,  were  the 
question  fairly  to  arise,  as  it  never,  perhaps,  has  done,  could, 
according  to  the  weight  of  American  authority,  be  decided  to 
be  valid  and  effectual. 

In  McDeed  v.  McDeed,  57  111.,  545,  a  case  already  cited 
on  another  point,  the  principle  seems  to  have  received  the  in- 
direct assent  of  our  Supreme  court.  That  was  a  case  of  the 
dissolution  of  a  marriage  contracted  in  Ohio  by  a  man  under 
eighteen,  by  disaffirmance  on  arriving  at  eighteen,  in  pursuance 
of  a  law  of  Ohio.  The  husband  then  moved  to  Illinois,  mar- 
ried again,  and  died  a  domiciled  citizen  of  Illinois.  In  a  suit 
by  a  child  of  the  first  wife,  in  Illinois,  to  recover  the  property 
of  the  husband  as  his  heir,  it  was  held  that  the  dissolution 
of  the  marriage  by  disaffirmance  under  Ohio  law  was  valid, 
though,  at  the  time,  the  laws  of  Illinois  permitted  marriages 
under  the  age  of  eighteen  years.  The  ground  of  the  decision 
was  that  the  parties  were,  at  the  time  of  the  dissolution  of  the 
marriage,  domiciled  in  Ohio. 

Mr.  Phillimore  concludes  his  discussion  upon  this  question 
as  follows :  *'0n  the  other  hand,  a  State  which  does  not  hold 
the  doctrine  of  the  personal  statute,  above  mentioned,  and 
which  does  not  hold  that  divorce  is  such  a  question  of  public 
order  and  morality  that  no  change  of  domicil  can  give  a 
foreign  State  jurisdiction  over  it,  ought  to  recognize  the  sen- 
tence of  a  foreign  State  over  persons  at  the  time  domiciled 
within  its  territory,  though  she  does  not  sanction  the  grounds 
of  that  divorce,  by  her  domestic  law."  IV,  Phil.  Int.  Law, 
pp.  324,  335,  336. 

If  such  be  the  rule  as  to  the  divorce  of  the  subjects  or 
citizens  of  a  State  domiciled  abroad,  how  much  more  should 
it  be  the  rule  as  to  persons  not  citizens,  but  merely  domiciled 


FOREIGN  MAKKIAGE  AND  FOREIGN  DIVOECE.          177 

in  this  State,  when  married,  and  who  were  divorced  in  the 
State  of  which  both  parties,  or  at  least  the  husband,  was  a 
subject  and  citizen,  and  in  which  they  acquired  a  domicil 
subsequently  to  their  marriage  here. 

So  far  of  foreign  divorces  as  affecting  a  status,  and  as  en- 
titled to  recognition  beyond  the  limits  of  the  country  where 
they  were  rendered.  Before  inquiring  into  their  effect  upon 
property  rights  in  other  countries,  let  us  consider  a  few  de- 
cided cases,  bearing  on  the  foregoing  principles.  In  LoDy's 
Case,  1  Kuss.  &  Ky.  cases,  239,  an  English  subject,  married 
and  domiciled  in  England,  went  to  Scotland,  and  there,  with- 
out having  acquired  a  new  domicil,  procured  a  divorce  a 
vinculo,  from  his  wife.  Eeturning  to  England  and  marrying 
again,  he  was  found  guilty  by  the  twelve  judges,  on  an  indict- 
ment for  bigamy,  on  the  ground  that  he  was  not  domiciled  in 
Scotland,  and  therefore  his  divorce  was  invalid. 

See,  also,  to  the  same  effect,  Dolphin  v.  Eobins,  1  Sw.  & 
Tr.,  37;  S.  C.  7  H.  L.,  390;  Dicey,  Dom.,  pp.  351,  355. 

In  Warrender  v.  Warrender,  2  Cl.  &  Fin.,  523,  S.  C.  9 
Bligh.,  89,  the  same  rule  was  applied  with  a  contrary  result. 
A  Scotch  gentleman,  domiciled  in  Scotland,  married  in  Lon- 
don an  English  woman,  who  had  been  only  twice  temporarily 
in  Scotland,  after  the  marriage.  The  husband  procured  a 
divorce  in  Scotland,  where  he  principally  lived,  from  his  wife, 
who  at  the  time  resided  in  France.  Lord  Brougham  sustained 
the  divorce  in  England,  upon  the  ground  that  the  parties  were 
domiciled  in  Scotland. 

See  also,  Conway  v.  Beasley,  3  Hagg,  Eccl.  E.  642 :  Har- 
vey v.  Farnie,  L.  E.,  5  P.  D.  153;  Macarthy  v.  Decaix,  2 
Euss.  &  Ey.  614 ;  and  the  remarks  upon  it  of  Phillimore,  IV 
Int.  Law,  §§  515,  519,  pp.  341,  345.  Compare  Dicey  Dom., 
pp.  351-355. 

These  cases  represent  the  present  state  of  English  law  up- 
on the  question. 

Of  American  cases,  one  of  the  strongest  is  Hunt  v.  Hunt, 
72  N.  Y.,  217.  In  that  case,  a  man  and  wife  being  domiciled 
in  Louisiana,  the  wife  left  him  and  took  up  her  residence  in 
New  York.  The  husband  then  procured,  in  a  Louisiana  court, 
upon  a  service  not  actual,  but  substituted  by  the  law  of  the 
forum,  a  divorce  from  his  wife,  and  married  again.  To  a  bill 
filed  in  New  York,  against  the  husband  for  a  divorce,  on  the 
ground  of  adultery,  because  of  the  latter  marriage,  the  prior 


178  MARRIAGE  AND  DIVORCE 

divorce  in  Louisiana  was  pleaded,  and  it  was  held  to  be  a 
good  defense. 

Now,  barring  the  circumstances  that  in  our  case  the  jadg- 
ment  was  that  of  a  foreign  tribunal,  and  in  the  New  York  case 
it  was  that  of  another  State,  the  facts  are  similar,  but  because 
of  another  circumstance,  that  in  the  Wurternberg  suit  the  de- 
fendant personally  appeared,  the  decree  therein  is  far  more 
consonant  with  international  principles  thanthat  pronounced 
by  the  New  York  court.  So  in  Gould  v.  Crow,  57  Mo.,  200, 
where  the  facts  were  substantially  the  same,  the  service  upon 
the  defendant  having  been  by  publication  of  a  notice  ina  news- 
paper, the  Supreme  court  of  Missouri  ruled  that  while  the 
decree  of  divorce,  which  was  rendered  in  Indiana,  "had  no 
extra  territorial  effect  in  personam,  it  had  the  effect  as  a  judg- 
ment in  rem  to  dissolve  the  res,  which  was  the  status  of  mar- 
riage, and  that  the  dissolution  operated  everywhere." 

To  the  same  effect  is  Barber  v.  Boot,  10  Mass.,  260,  and 
Kinnier  v.  Kinnier,  45  N.  Y.,  535. 

The  last  is  a  remarkable  case,  having  a  significant  bearing 
upon  the  one  before  me.  The  facts  were,  that  a  former  hus- 
band of  the  defendant,  a  resident  of  Massachusetts,  had  gone 
to  Illinois  expressly  to  procure  a  divorce  fromher,and,  by  her 
appearance  in  the  suit  and  collusion  with  him,  had  been  able 
to  secure  a  decree.  Subsequently  the  divorced  wife  returned 
to  the  East  and  married  the  present  plaintiff  in  New  York. 
Held,  in  an  action  brought  by  him  (the  second  husband)  to 
dissolve  this  marriage  with  her,  on  the  ground  of  her  former 
marriage  being  still  in  force,  that  a  complaint  stating  these 
facts  was  insufficient,  and  a  demurrer  to  it  was  sustained ; 
and  it  was  held  that  the  Illinois  court  had  jurisdiction  of  the 
subject-matter  (to  decree  divorces  according  to  the  laws  of 
the  State),  every  State  having  the  right  to  determine  for  itself 
the  grounds  upon  which  it  will  dissolve  the  marriage  relation 
of  those  within  its  jurisdiction,  and  that  the  court  had  juris- 
diction of  the  parties  by  a  voluntary  appearance  of  the  de- 
fendant. 

Applying  these  principles  to  the  present  case :  Had  the 
complainant,  after  the  dissolution  of  her  marriage  in  Wurtern- 
berg, come  to  Illinois  and  married  again,  and  had  her  second 
husband  sought  from  her  here,  a  divorce  on  the  ground  that 
her  former  marriage  was  still  in  force,  the  facts  would  have 
been  the  same  as  in  the  case  last  cited ;  but  is  there  any  reason 


FOEEIGN  MAEKIAGE  AND  FOBEIGN  DIVORCE.  179 

to  suppose  our  courts  would  have  held  differently  from  the 
court  of  New  York  as  to  the  validity  of  the  decree  of  dissolu- 
tion, and  that  all  the  more,  because  in  the  suit  in  Wurtemberg 
there  is  no  pretense  that  there  was  fraud  or  collusion  on 
either  side,  and  Both  was  a  subject  and  citizen  of  Wurtem- 
berg, domiciled  there  at  the  time  the  decree  was  rendered  ? 

There  is  general  agreement  among  the  authorities  as  to 
the  effect  of  a  foreign  divorce  upon  the  property  rights  of  the 
parties.  Phillimore  says : 

"It  seems  clear  that  States  which  recognize  the  validity 
of  a  foreign  divorce  must  recognize  the  incidents  to  it,  such 
especially  as  its  effects  upon  personal  and  real  property.  The 
effect  upon  the  former  ought  to  be  the  same  with  that  on  the 
personal  property  in  the  State  which  decreed  the  divorce.  The 
effect  upon  the  latter  must  depend  upon  the  lex  rei  sitae, 
according  to  the  prevalent  doctrine  as  to  real  property.  If 
the  lex  rci  sitae  visit  divorce  with  certain  consequences,  and 
recognizes  a  foreign  divorce,  it  ought  to  ascribe  the  same 
effects  to  it  as  to  a  divorce  by  the  domestic  law."  IV.  Phil. 
Int.  Law,  §  508,  p.  336. 

Story  announces  the  same  rule,  and  adds :  "If  a  dissolu- 
tion of  the  marriage  would  there"  (the  place  of  the  situs  of ' 
real  property)  "be  consequent  upon  such  a  divorce,  and  would 
there  extinguish  the  right  of  dower,  according  to  such  local 
law,  then  the  like  effects  would  be  attributed  to  the  foreign 
divorce,  which  worked  a  like  dissolution  of  the  marriage." 
Story  Conf.  Laws,  §  230  e,  citing  Warrender  v.  Warrender,  9 
Bligh.,  127.  See  also  Savigny,  Priv.  Int.  Law  (Guthrie),  § 
362,  pp.  104-108. 

How  far  our  courts  have  gone  in  applying  the  principle 
affirmed  by  Phillimore  and  Story  may  be  seen  from  a  few 
decisions.  In  Gould  v.  Crow,  57  Mo.,  200,  when,  as  we  have 
just  seen,  the  Supreme  court  of  Missouri  pronounced  an 
Indiana  divorce  procured  upon  a  notice  by  publication  effectual 
to  dissolve  the  res,  the  marriage  status,  it  went  further  and  de- 
clared that  "the  dissolution  of  the  status  operated  everywhere, 
and  that  all  rights  dependent  upon  it  ceased  not  only  in  the 
State  where  it  had  been  rendered,  but  in  all  other  dominions." 
So,  in  the  case  of  Barber  v.  Boot,  10  Mass.,  260,where  the 
Supreme  court  of  Massachusetts  passed  upon  a  divorce 
rendered  in  Yermont,  between  parties  domiciled  there,  though 
the  contract  of  marriage  had  been  entered  into  in  Massachu- 


180  MAKKIAGE  AND  DIVOECE. 

setts,  for  a  cause  not  recognized  as  a  ground  for  divorce  in 
Massachusetts,  it  was  held  that  the  divorce,  having  been  pro- 
nounced by  a  competent  court,  having  jurisdiction  both  of  the 
person  and  the  subject-matter,  dissolved  the  marriage  re- 
lation and  had  in  Massachusetts  the  effect  there  given  to  such 
a  dissolution,  namely,  a  divestiture  of  the  rights  of  the  offend- 
ing party  in  the  lands  of  the  other  in  Massachusetts. 

Considering,  now,  that  by  the  law  of  Illinois  a  party  for 
whose  fault  a  divorce  has  been  granted,  loses,  by  forfeiture, 
"dower  and  any  estate  granted  by  the  laws  of  this  State  in 
the  real  or  personal  estate  of  the  other  party,"  and  that,  by 
the  same  law,  "where  the  marriage  is  void  from  the  begin- 
ning," no  dower  or  other  interest  in  each  other's  property  is 
allowed,  it  seems  clearly  to  follow  that  the  decree  of  nullity 
cut  off  all  apparent  right  of  the  complainant,  as  de  facto  the 
wife  of  Eoth,  to  his  property  •  in  Illinois.  See  Ch.  4-1,  Sec. 
14,  111.  Eev.  Stat.,  title,  Dower. 

Two  objections  raised  to  the  validity  of  this  conclusion 
may  be  briefly  considered ;  one,  that  the  decree  of  nullity 
was  void,  as  based  upon  a  statute  of  Wurtemberg,  which  at 
the  date  of  the  decree,  had  been  repealed — the  statute  of 
1808;  the  other,  that  to  give  to  that  divorce  the  force  indi- 
cated above,  would  contravene  the  policy  of  this  State  in 
respect  to  divorces.  As  to  the  supposed  effect  of  the  repeal 
of  the  statute,  no  authority  has  been  cited,  and  I  have  been 
able  to  find  but  one  (Savigny).  Savigny  is  of  opinion  that  when 
an  alteration  is  made  in  the  law  of  divorce,  by  a  new  law  or 
by  a  repeal  of  an  old  one,  the  marriage  must  be  judged  by 
the  new  or  modified,  and  not  by  the  old  law.  He  admits  that 
he  bases  this  view,  not  upon  "juridical  reasons,  but  on  moral 
(partly  moral  and  religious)  grounds,"  and  affirms  that  "be- 
cause laws  as  to  divorce  have  moral  grounds  and  aims,  they 
are  therefore  of  a  coercitive  nature,  and  so  belong  to  the 
laws  as  to  the  existence  of  marriage."  Priv.  Int.  Law,  §  399, 
p.  365. 

Sitting  as  a  court  of  law,  it  is  not  perceived  what  power 
I  have  to  determine  questions  of  property  upon  reasons  not 
juridical,  but  partly  moral  and  partly  religious,  finding  no 
place  in  our  statutes  or  in  the  decisions  of  our  courts.  This 
view,  moreovei,  seems  not  to  have  been  accepted  by  the 
tribunals  of  Wurtemberg,  to  which,  upon  this  question  of 
their  own  law,  great  deference  ought  to  be  paid.  The  ex- 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.          181 

perfs  examined  by  the  defendant,  Amalie,  agree  in  declaring 
that  the  repeal  of  the  law  of  1808  had  no  effect  whatever 
upon  the  marriage  contracted,  before  it  took  place,  but  that 
such  marriage  was,  by  Wurtemberg  law,  to  be  governed,  in  all 
respects,  by  the  statutes  in  force  when  it  was  celebrated. 
Moreover,  the  effect  of  the  law  of  1808,  which  had  been  re- 
pealed by  the  law  of  1872,  was  one  of  the  issues  heard  and 
determined  by  the  Wurtemberg  court  in  that  case,  and  the 
decree  found  the  law  of  1808  was  applicable  and  governed  the 
decision.  This  was  an  impeachable  certificate  of  the  law  of 
that  kingdom :  Wharton  Conf.  Law,  §  801. 

In  respect  to  the  policy  of  Illinois,  little  more  need  be 
said,  than  that  in  the  absence  of  an  express  declaration  of 
that  policy  by  our  legislature,  or  by  our  highest  courts,  that 
policy  which  is  clearly  to  be  inferred  from  the  whole  course 
as  well  of  our  legislation,  as  of  judicial  decision  in  the 
State,  ought  to  set  the  question  at  rest.  The  policy  so  infer- 
able is  one  of  freedom  of  marriage  and  freedom  of  divorce,  both 
of  citizens  and  of  foreigners,  and  when  the  latter  have  been 
married  here,  whether  to  citizens  or  to  foreigners,  it  is  not 
the  policy  of  this  State  to  forbid  them  to  sunder  lawfully 
their  relations  with  us  orrwith  each  other,  or  to  form  lawfully 
new  relations  in  the  countries  to  which  they  may  emigrate, 
and  in  which  they  may  become  domiciled.  We  do  not 
register  them,  unless  they  become  naturalized  citizens  of  the 
United  States,  nor,  when  they  are  divorced  abroad,  do  we 
trouble  ourselves  about  their  future  marital  relations,  or  in 
case  of  their  death  disturb  them  or  their  successors  in  the 
enjoyment  of  such  property  as  they  may  have  left  here,  save 
as  we  justly  may,  to  protect  their  creditors. 

Assuming  that  the  decree  of  nullity  was  valid,  and  had 
the  effect  stated,  the  claims  of  the  complainant  fall  to  the 
ground  with  their  basis,  the  supposed  marriage  with  Both. 
This  is  not  denied  by  her  counsel ;  but  it  is  averred  that  the 
decree  is  invalid,  and,  on  that  hypothesis,  it  is  claimed  that 
Madelaine  is  still  entitled,  notwithstanding  the  releases  and 
the  deed  to  Both,  and  to  Amalie,  of  all  interest  in  the  prop- 
erty of  Both,  to  a  widow's  share  of  such  property,  on  the 
ground  that  those  releases  were  executed  by  her  in  ignor- 
ance of  her  rights,  upon  false  representations,  and  under 
undue  influence. 

To  determine  the  question  of  the  binding  effect  of  these 


182  MARRIAGE  AND  DIVORCE. 

instruments  on  the  assumption  that  the  decree  was  and  is 
invalid,  the  circumstances  under  which  they  were  executed 
must  be  considered.  At  the  time  the  first  release  of  Septem- 
ber 9th,  1873,  was  executed,  the  parties  had  been  five 
months  separated  by  a  decree  of  nullity  pronounced  by  a 
court  which  the  parties,  doubtless,  considered  a  competent 
one,  and  they  probably  agreed  that  the  effect  of  that  decree 
was  to  cut  off  all  the  rights  of  complainant  in  Eoth's  prop- 
erty. Certainly  there  is  no  evidence  that,  at  that  time, 
either  of  them  entertained  a  doubt  of  the  perfect  validity  of 
that  decree,  whatever  the  complainant  may  have  thought  of 
its  abstract  rightfulness.  If  so,  Madelaine  must  have  sup- 
posed her  late  husband,  in  securing  the  release  from  her,  to 
be  acting  merely  out  of  abundant  caution,  and  to  be  making 
to  her  substantially  a  gift  of  the  $8,000.  If,  on  the  con- 
trary, she  had  a  suspicion  that  her  defense  to  the  nullity 
suit  ought  to  have  been  allowed,  and  that  the  decree  therein 
was  either  invalid  or  irregular  as  well  as  unjust,  and,  if  so 
believing,  she  consented  to  waive  her  defense,  or  her  right 
of  appeal  in  consideration  of  the  $8,000  paid  her,  then  that 
payment  must  be  taken  to  have  been  made  upon  a  compro- 
mise of  a  disputed  claim,  and  it  is  perfectly  settled  that  such 
a  compromise  would  not  be  disturbed,  though  it  was  after- 
ward made  apparent  that  her  right  was  incontestible,  and 
that  of  Both  was  without  foundation.  However  this  may  be, 
when  the  complainant  visited  Schorndorf  after  the  death 
of  Both,  there  is  reason  to  believe  that  she  went  there  not 
only  to  see  if  her  late  husband  had  not  left  her  something 
more,  but  to  make  the  best  terms  she  could  with  Both's 
widow  for  an  abandonment  of  supposed  claims  of  her  own 
upon  his  estate. 

Thus  during  a  visit  of  over  a  week  she  either  herself 
opened  or  acceded  to  proposals  for  opening  negotiations  with 
Amalie  for  a  further  allowance  from  her  husband's  estate, 
and  she  actually  received  from  Amalie  10,000  marks,  and 
thereupon,  in  consideration  thereof,  executed  the  release  and 
settlement  of  September  26th,  1876.  By  this  -instrument, 
after  reciting  the  proceedings  at  Ellwangen,  by  which  her 
marriage  had  been  declared  null,  she  renounced,  as  she  ex- 
pressed it,  "knowingly  and  under  mature  consideration,  all 
and  every  claim  which  she  might  be  entitled  to,  according  to 
the  existing  laws  of  the  city  of  Chicago,  of  the  State  of  Illi- 


FOREIGN  MAEEIAGE  AND  FOREIGN  DIVORCE.          183 

Hois,  and  also  according  to  the  laws  of  the  United  States  of 
North  America,  upon  her  deceased  husband,  John  George 
Roth,  or  upon  the  estate  left  by,  him,  both  in  the  United 
States  of  North  America,  as  also  in  Germany,  whether  as 
heirs  of  the  deceased  husband,  or  what  might  be  derived  in 
general  from  the  marriage  contracted  with  him."  It  was 
then  stated  that,  in  consideration  of  her  renunciation  of  her 
claims  against  her  deceased  husband,  both  in  America  and 
in  Germany,  in  addition  to  eight  thousand  dollars  paid  her 
September  9th,  Ib73,  she  was  now  to  receive,  by  the  first 
day  of  July  following,  the  sum.  of  10,000  marks,  and,  in  case 
of  delay,  interest  thereon  at  5  per  cent.  She  then  revoked, 
"  explicitly  and  knowingly,  the  power  of  attorney  given  to 
her  brothers,"  Ludwig  and  George  Moser,  "residing  near 
Chicago,  or  to  any  person  to  lay  claim  for  her  to  the  estate 
left  by  her  deceased  husband."  This  last  clause  is  extreme- 
ly significant,  since  it  demonstrates  that,  before  its  execution 
she  had  conceived  herself  to  be  entitled  to  a  portion  of  such 
estate,  and  had  taken  steps  to  assert  her  supposed  rights. 
The  release  was  duly  executed,  witnessed  and  acknowledged 
at  Schorndorf,  before  Gaupp,  the  royal  Wurtemberg  court 
notary. 

Without  further  specification,  then,  I  find  that  this  re- 
lease was  executed  by  the  complainant  with  full  knowledge 
of  her  rights  and  of  all  essential  facts.  I  also  find  that  it 
was  executed  without  fraud,  misrepresentation,  or  under  in- 
fluence on  the  part  of  Amalie,  and  that,  coupled  with  that 
executed  to  her  husband  after  the  decree  of  nullity,  it  bars 
in  equity  all  right  on  her  part  in  the  property  of  her  hus- 
band, irrespective  of  the  validity  or  invalidity  of  the  decree 
of  nullity.  In  addition  to  this,  is  the  deed  of  October  3d 
following,  by  which,  in  a  more  formal  manner,  the  complain- 
ant, upon  the  same  considerations  and  upon  a  conditional 
agreement  to  pay  her  more  in  case  the  Chicago  property 
should  be  well  sold,  conveyed  to  Amalie  all  her  interest  in 
her  husband's  property. 

As  to  the  rights  of  the  other  defendants,  the  case  stands 
differently.  By  virtue  simply  of  the  marriage  with  the  de- 
ceased Both,  the  defendant  Amalie  acquired  at  his  death, 
according  to  Illinois  law,  all  his  personal  and  one-half  his 
real  estate,  after  payment  of  all  just  debts.  The  remaining 
half  of  his  real  estate  went  to  Roth's  brothers  and  sisters 


184  M1KEIAGE  AND  DIVORCE. 

and  their  descendants,  unless  interrupted  by  the  operation  of 
some  transfer  made  by  Both  during  his  lifetime. 

Such  a  transfer,  it  is  claimed  on  Amalie's  behalf,  was 
effected  by  the  instrument  styled  "a  marriage  and  inherit- 
ance contract,"  an  instrument  exhibiting  many  of  the  features 
of  a  post-nuptial  settlement  made  between  Both  and  Amalie 
some  four  months  after  their  marriage.  This  instrument 
was  formally  executed  and  acknowledged  by  the  parties  to  it, 
according  to  the  law  of  Wurtemberg,  and  has  been  duly 
authenticated  as  evidence  in  this  case.  From  the  testimony 
of  the  expert  witnesses,  Lautenschlager  and  Schott,  this  con- 
tract was  valid  and  effectual  by  the  law  of  the  place  where 
executed,  for  the  purposes  set  forth  in  it.  Whether  it  has 
any  and  what  force  and  effect  in  Illinois,  as  touching  the 
real  property  of  Both  here  situate,  is  the  question  to  be  de- 
termined. The  tenor  of  the  instrument  was  that  the  parties 
thereby  settled  by  agreement  "their  property  relations  during 
their  marriage,  and  the  future  succession  thereof."  The 
husband  contributed  to  the  marriage  his  property  in  Germany 
and  America,  without  an  attempt  at  valuation ;  the  wife  con- 
tributed dowry  from  her  mother,  in  cash,  2,500  florins;  also, 
chattels  appraised  at  1,000  florins. 

There  was  to  exist  between  them  general  community  of 
estate,  extending  to  the  estate  of  both,  present  and  future; 
both  husband  and  wife  were  to  have  equal  claims  on  the 
common  property ;  and  all  debts,  known  or  unknown,  previ- 
ous or  subsequent  to  the  marriage,  were  to  be  considered  as 
common  debts,  with  the  right  to  the  husband  of  controlling 
the  property,  and  of  disposing  of  or  mortgaging  the  same 
without  interference  on  the  part  of  the  wife.  Upon  the  death 
of  either,  the  community  was  to  be  continued  with  the 
children,  if  any,  until  his  or  her  death,  or  re-marriage. 
Upon  the  death  of  the  survivor,  the  whole  estate  was  to  be 
divided  among  the  children,  according  to  the  Wurtemberg 
law  of  intestacy,  as  the  estate  of  both  parents.  Should  either 
husband  or  wife  die  childless,  the  community  of  estate  was  to 
cease,  and  the  entire  estate,  until  then  held  in  common,  to  fall 
to  the  survivor  as  his  sole  property,  excluding  all  claims  of 
inheritance  by  relatives  of  the  ascending  line,  as  well  as  by 
collateral  relatives  of  the  deceased.  The  survivor,  however, 
within  a  year  of  the  death  of  the  other,  was  to  pay  to  the  rel- 
atives of  the  deceased  without  interest,  and  without  security, 


FOREIGN  MAEEIAGE  AND  FOREIGN  DIVORCE.  185 

a  so-called  revisionary  interest ;  that  is  to  say,  the  husband, 
if  he  survived,  was  to  pay  to  the  wife's  relatives  the  entire 
contribution  of  his  wife,  of  3,500  florins,  and  its  acquisitions 
during  marriage. 

The  wife,  if  she  survived,  was  to  pay  to  her  husband's 
relatives,  naming  those  then  living,  80,000  florins,  to  be 
divided,  per  stirpes.  It  was  finally  provided  that  the  payment 
of  the  husband's  relatives  should  be  proportionately  reduced 
in  case  80,000  florins  should  turn  out  to  be  more  than  one- 
half  the  whole  estate. 

The  rights  dependent  on  this  contract  are  to  be  deter- 
mined by  the  law  of  the  place  where  it  was  executed,  the 
kingdom  of  Wurtemberg.  Decouche  v.  Savetier,  3  Johns. 
Ch.,  190. 

What  construction  that  law  places  upon  a  contract  of 
such  a  nature  has  been  expressly  declared  by  the  expert 
witnesses  before  named.  After  stating  that  the  marriage 
and  inheritance  contract  was  executed  in  due  form  so  as  to 
become  operative  for  the  purposes  therein  declared,  accord- 
ing to  that  law,  those  witnesses  affirm  that,  assuming  the 
death  of  Both  without  conveying  the  property  therein 
described  and  referred  to,  Amalie,  his  widow,  would  have  a 
right  to  the  whole  fortune  left  by  him,  subject  to  the  pay- 
ment of  eighty  thousand  florins  to  his  relatives,  as  therein 
stipulated.  In  this  judgment,  they  are  supported  by  Ameri- 
can authorities,  including  our  own  Supreme  court,  passing 
upon  contracts  in  the  main  similar,  and  like  this,  executed 
abroad.  Decouche  v.  Savetier,  3  Johns.  Ch.,  190 ;  Besse 
v.  Pellochoux,  73  111.,  285;  Story,  Confl.  Laws,  §§143, 
184,  185. 

The  tenor  of  these  authorities  is,  that  where  there  is  an 
express  ante-nuptial  contract,  it  will  generally  be  admitted 
to  govern  all  the  property  of  the  parties,  not  only  in  the 
matrimonial  domicil,  but  in  every  other  place,  unless  it  con- 
travenes some  law  or  principle  of  public  policy  of  the  coun- 
try where  it  is  sought  to  be  enforced.  It  will  act  directly  on 
movable  property  everywhere,  but  as  to  immovable  property 
in  a  foreign  territory,  it  will,  at  most,  only  confer  a  right  of 
action,  to  be  enforced  according  to  the  jurisprudence,  rei 
sitae. 

Now,  first,  a  post-nuptial  contract,  when  there  are  no 
creditors,  and  where  the  consideration  is  sufficient,  is  as  valid 


186  MARRIAGE  AND  DIVORCE. 

as  an  ante-nuptial  contract.  Here  there  are  no  creditors, 
and  the  consideration  is  abundant. 

Secondly,  there  is  no  law  or  policy  of  this  State  contra- 
vened by  the  contract  in  question ;  on  the  contrary,  it  falls  in 
with  rules  of  property  established  by  statute  law  and  by 
judicial  decisions.  It  is  settled  that  the  husband  may  vest 
his  entire  estate  in  his  wife,  to  the  exclusion  of  his  heirs,  who 
have  no  rights  against  his  express  wish,  legally  declared. 
Moritz  v.  Hoffman,  35  111.,  553  ;  Sweeney  v.  Damron,  47  111., 
457;  Harris  v.  Harris,  54  111.,  74;  Bridgeford  v.  Eiddle,  55 
111.,  263 ;  Lincoln  vs.  McLaughlin,  74  111.,  68 ;  Yazel  v.  Pal- 
mer, 81  111.,  82. 

Heirs  expectant  have  no  interest  in  the  estate  of  the  party 
from  whom  they  expect  to  inherit,  nor  is  the  owner  under 
any  obligation  to  leave  his  estate  to  them.  Kutherford  v. 
Morris,  77  111.,  412;  Sexton  v.  Wheaton,  1  Am.  Lead.  Gas., 
17,  and  notes. 

Thirdly,  conceding  that  our  act  of  1874  has  no  bearing 
upon  this  contract,  so  as  to  make  it  operative  to  convey  the 
legal  title,  it  conveys  a  title  which  will  be  recognized  and  en- 
forced in  equity  as  against  Roth's  heirs;  Dale  v.  Lincoln,  62 
111.,  22;  Livingston  v.  Livingston,  2  Johns,  Ch.,  537;  Hunt 
v.  Johnson,  44  N.  Y.,  27;  Wallingford  v.  Allen,  10  Pet.,  583; 
Jones  v.  Obenstein,  10  Grat.,  259. 

The  defendants,  other  than  Amalie,  therefore,  were  com- 
pletely cut  off  by  the  marriage  and  inheritance  contract,  as 
heirs,  and  had,  after  its  execution,  rights  in  Roth's  estate 
only  as  legatees  under  its  provisions,  but  by  their  conduct 
after  the  death  of  Both,  and  their  dealings  with  his  widow, 
they  have  estopped  themselves  from  claiming  as  heirs,  even 
were  the  effect  of  the  contract  such  as  to  permit  it.  .  It  ap- 
pears from  the  evidence  that  Roth  was  much  crippled  by  the 
Chicago  fire,  in  respect  to  his  ready  means,  and  that  after 
his  death,  his  widow,  finding  it  impossible  to  pay  within  the 
year  limited  the  legacies  of  Roth's  relatives,  made  known 
the  difficulty  to  the  latter,  and  stated  to  them  that  to  make 
the  full  payment  it  would  be  necessary  to  sell  a  portion  or  all 
of  the  Chicago  property.  To  enable  her  to  do  this,  she  in- 
duced them  to  make  to  her  or  to  Albert  Staehle,  her  agent, 
quit-claim  deeds  of  such  property.  In  the  meantime,  both 
before  and  after  the  execution  of  such  deeds,  she  made  to 
them  considerable  payments  on  account  of  their  respective 


FOKEIGN  MABRIAGE  AND  FOKEIGN  DIVOECE.          187 

legacies,  in  some  cases  amounting  to  over  two  thousand,  and, 
in  all  cases,  to  many  hundred  dollars.  It  cannot  be  justly 
pretended  that  they  did  not  know  as  much  in  regard  to  their 
rights,  if  any  they  had  in  Koth's  property,  independently  of 
the  marriage  and  inheritance  contract,  as  Amalie  did,  or  as 
anybody  else  did,  at~the  time  they  received  these  payments 
and  executed  their  deeds ;  and  there  is  no  evidence  worthy  of 
the  least  attention  that  they  were  deceived  or  misled  by 
Arualie,  or  her  brother,  or  other  agents  in  Chicago,  in  regard 
to  the  property  or  their  rights  therein.  If  ever  there  was, 
therefore,  a  righteous  estoppel,  there  is  such  an  estoppel  upon 
Roth's  heirs  here,  supposing  even  that  the  marriage  and  in- 
heritance contract  was  invalid ;  for,  knowing  their  rights,  they 
consented  to  part  with  them,  or  to  compromise  them  for  a 
price,  of  which  they  received  a  large  share.  To  permit  them 
now  to  repudiate  their  deeds  and  to  demand  their  proportions 
as  heirs  would  be  to  sanction  the  grossest  injustice  to  Amalie, 
and  the  most  glaring  inconsistency  in  them. 

I  deem  it  proper  further  to  say,  that  to  sustain  the  charges 
made  by  the  complainant,  and  seconded  by  Amalie's  co-de- 
fendants, of  immorality  on  the  part  of  the  latter  in  her  rela- 
tions with  Both,  prior  to  her  marriage  to  him,  there  is  no  evi- 
dence deserving  of  the  slightest  weight.  Certainly  Amalie 
stands  before  the  court  as  spotless  in  reputation  as  the  com- 
plainant herself,  in  respect  to  the  relations  sustained  by  them 
severally,  while  unmarried,  to  the  man  who  was  afterward 
the  husband  of  each. 

To  the  conclusion  thus  forced  upon  me,  objections  have 
been  raised,  but  one  of  which  will  be  considered.  The  post- 
nuptial settlement  required  Amalie,  if  the  survivor,  to  pay 
the  80,000  florins  to  the  relatives  of  Both,  within  one  year 
from  the  time  she  becomes  sole  owner  by  the  death  of  Roth. 
Since  she  did  not  do  so,  it  is  claimed  that  she  forfeited  her 
rights  as  against  them,  or  rather  that  they  were,  as  the  re- 
sult of  her  default,  reinstated  in  their  rights  as  heirs  of  her 
husband,  and  that  they  had  a  lien  on  Roth's  estate  in  Amalie's 
hands,  for  their  respective  shares  thereof.  To  this  it  is 
answered,  that  the  construction  of  this  contract  is  to  be  de- 
termined by  the  laws  of  Wurtemberg,  where  it  was  executed, 
and  that  by  the  law  of  that  country,  as  deposed  to  by  foreign 
experts,  the  effect  of  the  failure  to  pay  within  the  year  was 
not  to  forfeit  the  contract,  but  to  create  an  obligation  on  the 


188  MARKIAGE  AND  DIVORCE. 

part  of  Amalie,  without  security  and  without  interest,  enforce- 
able by  the  ordinary  proceeding  in  that  kingdom  for  collect- 
ing debts ;  and  that  such  obligation  created  no  lien  upon  the 
estate. 

Decree  will  go  accordingly. 

When  the  case  reached  the  Supreme  court,  it  declined  to 
draw  fine  distinctions,  and  cut  the  Gordian  knot  by  resting 
their  decision  upon  two  simple  propositions.  The  decision  of 
Judge  Jameson,  however,  is  of  intense  interest  to  the  profes- 
sion, or  even  to  a  layman,  both  for  the  delicacy  and  romance 
of  the  questions  involved,  as  well  as  for  the  breadth  and  scope 
of  the  research  made,  and  the  ability  displayed  by  the  learned 
judge  in  deciding  the  case.  It  is  really  an  epitome  of  the 
law  of  foreign  marriage  and  foreign  divorce,  and  is  one  of  the 
most  learned  decisions  I  ever  read.  Judge  Jameson's  opinion 
attracted  great  attention.  It  appeared  in  many  law  journals 
and  was  strongly  supported,  and  disparaged,  with  equal  em- 
phasis. The  most  pronounced  criticism  contra,  which  fell 
under  my  notice,  appeared  in  Edinburg,  and  which  I  insert 
entire;  but  it  does  not  become  the  reviewer  to  call  Judge 
Jameson's  opinion  "nonsense."  That  transcends  the  bounds 
of  decent  criticism,  especially  when  applied  to  a  decision  of 
John  A.  Jameson. 

CRITICISM  OF  A     JUDICIAL  OPINION 

MADE  BY  "THE  JOURNAL  OP  JUBISPKUDENCE,  AND  SCOTTISH  LAW  MAGAZINE,"  EDIN- 
BUKG.  NO.  33  OF  VOL.  26,  MAKCH,  1882. 

"From  Illinois,  there  has  been  sent  to  us  a  report  of  the 
judgment  pronounced  by  the  Hon.  John  Jameson,  in  the 
Superior  court  of  Cook  county  in  that  State,  in  the  case  of 
Madelaine  Roth  v.  Fredericke  Ehman  et  al.,  a  case  regarding 
the  validity  of  a  marriage  and  the  authority  to  be  given  to 
the  decree  of  a  foreign  court  annulling  the  marriage.  The 
judgment  is  long  and  elaborate,  and  the  views  of  fche  learned 
judge  are  supported  by  some  hundred  and  twenty  references 
to  authorities,  and  legal  treatises.  We  confess  to  have  a  pre- 
disposition to  doubt  the  soundness  of  a  decision  or  an  argu- 
ment which  requires  to  be  so  elaborately  fortified,  and  a 
perusal  of  the  present  judgment  has  not  tended  to  diminish 
this  predisposition.  The  essential  circumstances  of  the  case, 


FOKEIGN.  MARRIAGE  AND  FOREIGN  DIVORCE.          189 

so  far  as  regards  the  question  of  jurisdiction,  or  rather  the 
question  by  what  law  the  validity  of  the  marriage  was  to  be 
determined,  are  as  follows :  A  man,  Both,  a  subject  of  the 
King  of  Wurtemberg,  emigrated  to  Chicago,  where,  during  a 
business  life  of  about  a  quarter  of  a  century,  he  acquired  a 
large  property,  both  heritable  and  movable.  Toward  the 
end  of  this  period  he  married  in  Chicago,  Madelaine  Moser, 
the  complainant  in  the  action,  a  native  of  Alsace.  Some 
years  afterward  Both  and  his  wife  left  America,  and  took  up 
their  abode  in  Schorndorf,  in  Wurtemberg.  In  1870,  some 
years  after  their  settling  down  there,  Koth  raised  an  action 
of  nullity  of  marriage  against  the  wife,  who,  on  the  institution 
of  the  proceedings,  went  to  reside  in  Alsace  \  and  in  1873  the 
decree  was  granted.  The  ground  of  action  and  the  decree 
was,  that  Koth  had  not  complied  with  a  law  of  Wurtemberg 
which  declared  void  all  marriages  of  subjects  of  that  kingdom 
contracted  abroad  without  the  license  of  the  king.  Shortly 
after  Roth,  of  course,  married  another  woman,  Amalie  Staehle, 
one  of  the  defendants  of  the  Illinois  action.  On  his  death, 
without  issue  of  either  marriage,  the  first  wife  raised  this 
action  under  consideration,  urging  that  the  Wurtemberg 
decree  of  nullity  of  marriage  was  of  no  effect  as  regarding 
the  property  in  Illinois  at  least,  and  claiming  as  relict,  her 
share  in  the  succession  of  that  property,  real  and  personal. 
As  regards  the  domicil  of  Both  and  his  first  wife,  the  learned 
judge  states :  *As  the  result  of  all  the  evidence,  that  at  the 
time  of  their  marriage  in  Illinois  they  were  domiciled  there ; 
that  when  they  returned  to  Wurtemberg,  they  changed  this 
their  domicil  of  choice,  to  Wurtemberg,  that  of  Both's  origin ; 
that  at  the  time  of  the  institution  of  the  nullity  suit  in 
Schorndorf  in  that  kingdom,  Both  still  had  his  domicil 
there,  whilst  that  of  his  wife  had  been  again  changed  to  the 
domicil  of  her  origin,  Alsace,  and  that  their  respective  domi- 
cils  thereafter  remained  the  same  until  the  death  of  Both.' 
<Few  causes,'  he  further  says,  'I  imagine,  have  ever  arisen 
involving  more  of  the  complicated  and  interesting  problems 
of  private  international  law  than  this.  By  what  law  shall 
the  validity  of  the  two  marriages  of  the  intestate  Both  be 
determined  ?  By  what,  that  of  the  decree  of  nullity  of  his 
marriage  witli  the  complainant?  If  that  decree  was  valid 
by  the  law  of  Wurtemberg,  how  is  it  to  be  regarded  by  the 
courts  of  Illinois  ?  ' 


190  MARRIAGE  AND  DIVORCE. 

"The  learned  judge  decided  that  the  decree  of  nullity  of 
the  first  marriage  being  the  decision  of  a  competent  Wurtem- 
berg court,  must  be  recognized  everywhere  else,  and  in  Illi- 
nois in  particular ;  that  the  second  marriage  must,  conse- 
quently, be  recognized  as  the  valid  marriage,  and  therefore 
that  the  complainant  Madelaine,  the  first  wife,  was  not 
entitled  to  any  share  of  the  succession  of  the  deceased,  even 
of  the  real  estate  situated  in  Illinois,  where  the  marriage  was 
celebrated.  The  method  of  reasoning  by  which  this  result  is 
arrived  at  is  singular.  The  question  as  to  the  validity  or 
invalidity  of  the  Illinois  marriage  depends,  says  the  learned 
judge,  'upon  the  place  by  whose  law  such  marriage  is  to  be 
tested,  whether  Wurtemberg  or  Illinois.  .  .  .There  are  three 
theories  as  to  the  place  which  ought  to  furnish  the  law  by 
which  marriage  is  to  be  governed  :"  first,  that  it  is  the  lex  loci 
coritractus ;  second,  that  it  is  the  lex  domicilii ;  third,  that  it 
is  the  law  of  the  domicil  of  origin,  "which,  under  the  name 
of  'their  personal  statute,'  is  supposed  to  accompany  the 
parties  wherever  they  go."  But  "  a  distinction  has  been 
established  which  removes  from  the  category  of  disputed 
cases  all  such  as  involve  questions  merely  as  to  the  formal 
requisites  as  distinguished  from  the  essentials  of  marriage. 
It  is  generally  conceded  that  the  former  are  to  be  determined 
by  the  lex  loci  contractus.  What  is  to  be  referred  to  form  and 
what  to  essentials  may  be  thus  discriminated :  When  the 
parties  are  not  prohibited  absolutely  from  marrying,  but  from 
marrying  without  certain  preliminaries,  as  the  consent  of 
parents,  such  prohibitions  are  to  be  referred  to  the  form." 
Now  if  there  ever  was  a  case  in  this  world  which  unmistaka- 
bly fell  within  this  category,  and  in  which  therefore  the  law 
to  be  applied  was  the  lex  loci  contractus  (which  happens  to  be 
the  law  of  Illinois),  it  is  the  present  case.  If  the  consent  of 
parents  is  a  preliminary  which  is  to  be  referred  to  the 
"  form,"  surely  the  consent  of  the  King  of  Wurtemberg  is  so 
too. 

«' Further,  the  learned  judge  remarks  (p.  11)  "that  of 
three  theories  stated,  he  must  reject  "that  of  the  'personal 
statute  '  as  opposed  to  our  national  traditions  and  policy. " 
There  being  only  two  remaining  theories,  that  of  the  lex  loci 
contractus  and  that  of  the  lex  domicilii,  and  the  law  of 
Illinois  being  both,  one  would  have  thought  that  there 
could  be  no  difficulty  in  applying  the  law  of  Illinois,  accord- 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.  191 

ing  to  which  the  first  marriage  was  good — nay,  that  there 
was  an  insuperable  difficulty  against  not  applying  it. 

"But  it  is  further  said  (p.  12),  that  "  whether  the  law  of 
the  doinicil,  the  lex  loci,  or  the  '  personal  statute,'  be  applied 
in  any  particular  case,  we  should  recognize  the  fact  that  the 
rule  of  decision  must  be  the  lex  fori.  That  is,  the  law  for 
the  case  in  hand  must  ever  be  that  of  the  country 
whose  tribunal  is  to  pass  upon  the  question."  Surely, 
then,  in  a  case  before  an  Illinois  court,  the  law  to  be 
applied  is  the  law  of  Illinois.  One  would  have  thought 
that  the  question  was  conclusively  settled.  According  to  the 
learned  judge's  own  statement,  there  are  only  three  laws 
which  can  possibly  be  applied  after  the  personal  statute 
theory  is  rejected — the  lex  loci  contractus,  the  lex  domicilii  and 
the  lex  fori.  The  law  of  Illinois  is  all  the  three,  and  the 
first  marriage  is  good  by  the  law  of  Illinois. 

"Then  it  is  said,  in  this  remarkable  judgment,  the  next 
question  relates  to  the  validity  of  the  second  marriage,  or, 
since  no  objection  can  be  raised  to  it  in  point  of  form,  to  the 
validity  of  the  decree  of  nullity  of  the  previous  marriage,  upon 
which  depended  the  capacity  of  Both  to  contract  such  second 
marriage.  One  would  have  thought  that  the  first  marriage 
being  valid  according  to  the  law  of  Illinois,  which  is  the  lex 
loci  contractus,  the  lex  domicilii,  and  the  lex  fori,  by  one  or 
other  of  which  the  question,  it  is  stated,  has  to  be  decided, 
there  could  be  no  question  in  an  Illinois  court  about  the 
effect  to  be  given  to  the  decree  of  nullity  of  marriage  or  as 
to  the  validity  of  the  second  marriage,  bigamy  being,  accord- 
ing to  the  laws  of  every  Christian  nation,  not  an  institution, 
but  a  crime.  But  the  judgment  goes  on  to  say :  'To  decide 
that  the  Illinois  marriage  is  valid  is  not  equivalent  to  decid- 
ing that  the  Wurtemberg  marriage  is  void.  The  Illinois 
marriage  might  be  valid  here,  if  drawn  in  question  directly 
in  our  courts,  and  on  the  principle  just  stated  be  invalid  in 
Wurtemberg,  when  tested  by  its  courts  applying  the  law  of 
that  kingdom,  declaring  it,  if  contracted  without  the  royal 
assent,  void.  And  the  Illinois  marriage,  tried  by  Illinois  law, 
and  in  an  Illinois  court,  might  be  valid,  afid  the  decree  of 
nullity  in  the  Wurtemberg  court  be  valid  and  effectual  also 
to  annul  it,  because  the  Illinois  marriage  was  invalid  by 
Wurtemberg  law  and  in  Wurtemberg  courts.'  Surely  no 
such  nonsense  was  ever  talked  out  of  Bedlam.  For  an 


192  MARRIAGE  AND  DIVORCE. 

Illinois  court  to  decide  that  the  Illinois  marriage  is  valid  is 
equivalent  to  deciding  that,  so  far  as  concerns  the  Illinois 
court  and  the  matters  over  which  it  has  jurisdiction,  which 
of  course  includes  the  right  of  succession  to  the  heritable 
property  situated  in  Illinois,  which  is  to  be  determined  the 
lex  rei  sitae,  the  second,  the  Wurtemberg  marriage  is  invalid. 
For  an  Illinois  court  to  decide  otherwise  is  to  decide  that  ac- 
cording to  the  law  of  Illinois  the  first  marriage  is  both  valid 
and  invalid. 

"It  is  not  difficult  to  see  how  the  learned  judge  diverged 
into  error.  He  proceeds  to  say :  'It  is  a  general  rule  that  all 
the  principles  applicable  by  private  international  law  to  di- 
vorces are  applicable  equally  to  decrees  of  nullity.'  There  is 
no  exception,  he  says,  in  suit  for  nullity  of  marriage ;  it  is 
not  to  be  presumed,  as  in  suits  for  divorce,  that  the  domicil  of 
the  wife  is  that  of  the  husband.  'The  decree  of  nullity  of  the 
Wurtemberg  court  will,  therefore,  be  considei:ed  on  the  author- 
ity, save  as  to  the  point  of  complainer's  domicil,  as  if  it  had 
been  one  for  divorce  a  vinculo.'  Here  is  the  origin  of  the 
fallacy.  Here  we  find  'the  little  rift  within  the  lute.'  A  de- 
cree of  nullity  of  marriage  cannot  be  considered  as  a 
decree  of  divorce  in  regard  to  the  question  whether 
the  decree  of  a  foreign  court  is  to  be  recognized  sim- 
ply because  it  is  not  a  decree  of  divorce,  but  differs  from  it 
toto  caelo.  A  decree  of  divorce  dissolves  the  marriage,  a 
decree  of  nullity  of  marriage  declares  that  the  marriage 
never  existed.  The  courts  of  a  country  in  which  a  marriage 
is  celebrated,  and  according  to  the  law  of  which  the  marriage 
is  good,  may,  as  our  Scottish  courts  do,  recognize  a  decree  of 
divorce  dissolving  that  marriage,  granted  by  a  foreign  court. 
In  doing  so  the  court  does  not  hold  that  a  marriage  good  by 
its  own  law  has  become  bad  by  the  decision  of  a  foreign  court; 
they  still  uphold  the  validity  of  the  marriage.  But  the  court 
of  a  country  in  which  a  marriage  is  celebrated,  and  according 
to  the  law  of  which  the  marriage  is  valid,  cannot  recog- 
nize an  act  upon  the  judgment  of  a  foreign  court  declaring 
that  the  marriage  is  invalid,  without  stultifying  itself.  In 
this  case  effect  can  only  be  given  to  the  Wurtemberg  decree 
by  preferring  the  Wurtemberg  law  to  the  Illinois  law,  which 
is  just  falling  back  upon  the  theory  of  the  'personal  statute,' 
a  theory  which  the  learned  judge  has  expressly  stated  he 
discards, 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.          193 

"The  gist  of  the  decision  is  just  this :  that  the  law  of  Illi- 
nois is  the  law  which  is  to  decide  as  to  the  validity  of  the 
first  marriage,  and  by  the  law  of  Illinois  the  first  marriage  is 
valid;  the  law  of  Wurtembergis  not  the  law  which  is  to  de- 
cide as  to  the  validity  of  the  first,  and  by  the  law  of  Wur- 
temberg  the  first  marriage  is  invalid ;  therefore  the  law  of 
Illinois,  the  law  which  is  applicable,  is  not  to  be  applied,  and 
the  law  of  Wurtemberg,  the  law  which  is  not  applicable,  is 
to  be  applied. 

"Many  decisions  and  authorities,  as  we  have  already  in- 
timated, are  cited  in  this  elaborate  judgment.  There  is, 
however,  one  case  not  cited,  which  is  exactly  in  point,  viz. : 
Simonin  v.  MaUac,  (29  L.  J.  Eep.,  P.  and  D.,  97,  3  Swabey 
and  Tristram,  67).  By  the  Code  Civil  of  France  a  marriage 
contracted  abroad  between  a  Frenchman  and  a  Frenchwoman, 
or  between  a  French  subject  and  a  foreigner,  is  not  valid  ex- 
cept it  is  celebrated  after  the  publication  and  with  the  consent 
of  the  parents,  if  the  man  is  under  twenty-five  and  the  wo- 
man is  under  twenty-one.  The  parties  in  this  case  of  Simo- 
nin were  French  subjects  and  the  woman  was  under  twenty- 
one.  They  went  to  London  with  the  express  purpose  of  get- 
ting rid  of  this  personal  incapacity,  and  got  married  with- 
out making  the  publication  or  obtaining  the  consents  re- 
quired by  the  French  law.  The  French  courts  held  the  mar- 
riage not  valid,  the  English  courts  held  that  it  was.  The 
English  courts  could  not  recognize  any  artificial  and  local 
restriction  imposed  by  the  law  of  France,  and  held,  in  fact, 
that  the  validity  of  the  marriage,  when  the  only  objection 
was  with  reference  to  the  form,  was  to  be  determined  by 
the  law  of  the  place  of  celebration.  This  is  a  much 
stronger  case  than  the  Illinois  one,  because  in  the  latter 
the  parties  did  not  repair  to  Illinois  to  evade  the  law  of 
their  own  country,  but,  on  the  contrary,  they  were  at  the 
time  of  the  marriage  domiciled  in  Illinois. 

"Similar  opinions  to  those  acted  upon  by  Sir  Cresswell 
Cresswell  in  Simonin's  case  have  been  expressed  in  Scot- 
land. In  Gordon  v.  Pye  (Ferguson's  Consistorial  Keports,  p. 
361),  Lord  Meadowbank  puts  the  question,  'Would  a  mar- 
riage here  be  declared  void  because  the  parties  were  domiciled 
in  England,  and  minors  when  they  married  here,  and  of  course 
incapable  by  the  law  of  their  country  of  contracting  mar- 
riage ?'  plainly  intimating  his  own  opinion  that  it  would  not. 


194  MARKIAGE  AND  DIVORCE. 

One  of  the  earliest  and  leading  English  cases,  in  which 
the  whole  twelve  judges  sat,  is  known  as  "LolleyV  case, 
where  English  subjects  were  married  in  England,  and  after- 
ward the  husband  went  to  Scotland  and  procured  an  abso- 
solute  divorce  there,  then  returned  to  England  and  married 
another  wife — held,  that  he  was  guilty  of  bigamy.  This 
case  turned  upon  the  distinction  in  point  of  jurisdiction  be- 
tween a  temporary  and  fugitive  residence  for  the  purpose  of 
a  divorce  and  a  bond  fide  change  of  domicil  by  the  husband 
and  wife  ammo  manendi.1 

Another  leading  case  was  that  of  Warrender  vs.  War- 
render,  in  which  a  Scotchman  domiciled  in  Scotland  was 
married  to  an  English  woman  in  England,  and,  by  their 
marital  contract,  jointure  was  secured  to  her  in  his  Scottish 
estate.  After  their  marriage  they  went  to  Scotland  and 
resided  there  a  short  time,  and  then  returned  to  England. 
The  wife  went  to  the  Continent  and  there  remained,  the  hus- 
band remaining  in  Scotland,  where  he  brought  suit  for  a 
divorce  for  adultery.  The  vital  question  was  whether,  assum- 
ing the  parties  to  be  domiciled  in  Scotland,  a  suit  could  be 
maintained  in  Scotland  for  a  divorce  from  an  English  mar- 
riage, which  by  the  law  of  England  was  indissoluble — held, 
it  could.2 

A  foreign  tribunal  has  no  authority,  so  far  as  any  conse- 
quences in  England  are  concerned,  to  pronounce  a  decree 
a  vinculo,  in  the  case  of  an  English  marriage  between  Eng- 
lish subjects,  unless  such  subjects  are  at  the  time  of  such 
decree  pronounced,  bonafide  domiciled  in  this  country  where 
that  tribunal  has  jurisdiction,  and  the  suit  is  prosecuted 
without  collusion.3  When  the  court  of  a  foreign  country 
has  jurisdiction  of  the  parties  and  subject  matter  of  the 
suit,  and  this  affirmatively  appears,  its  judgment  or  decree 
will  be  conclusive  on  the  parties,  their  legal  representatives 
and  privies  in  all  countries  where  the  matters  litigated  are 
again  drawn  in  question,  and  this  is  particularly  so  with 

>    1  Russ.  and  Ryan's  Or.  Cas.,  237.    2  9  Bligh.  89.    3  3  H.  L.,  55. 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.  195 

respect  to  judgments  or  decrees  affecting  status  of  a  person, 
they  being  in  the  nature  of  judgments  in  rem,  which  are 
binding  on  the  whole  world.  The  limitation  to  this  rule  is, 
that  it  may  be  shown  such  judgment  or  decree  was  obtained 
by  means  of  fraud,  or  gross  abuse  of  the  process  of  the 
court,  or  flagrant  departure  from  the  ordinary  course  of  judi- 
cial procedure.1 

A  marriage  declared  to  be  void,  ab  initio,  is  not  made  void 
by  virtue  of  a  decree  of  nullity.  The  decree  is  nothing  more 
than  a  judicial  declaration  of  the  status  of  the  marriage  and 
the  parties.2  In  a  case  where  a  marriage,  celebrated  in 
Massachusetts,  had  been  dissolved  in  Vermont,  upon  a  suit 
by  the  husband  for  a  divorce  for  the  cause  of  extreme  cruelty 
of  the  wife,  which  was  not  a  cause  in  Massachusetts,  it  ap- 
pearing that  the  parties  had  not  at  anytime  a  permanent 
domicil  in  Vermont,  but  had  gpne  there  merely  to  get  the 
divorce,  was  held  a  mere  nullity  upon  the  ground  that  there 
was  no  real  change  of  domicil.3 


VI. 

DIVORCE    LAW    IN    EUROPE     AND    CANADA. 

In  England  and  Wales,  prior  to  1858,  the  civil  courts  had 
no  jurisdiction  at  all  in  cases  of  divorce,  but  by  an  act  of 
parliament,  passed  August  28th,  1857,  it  was  provided  that 
"no  decree  shall  hereafter  be  made  for  a  divorce  a  mensa  et 
thoro,  but  in  all  cases  in  which  a  decree  for  divorce  a  mensa 
et  thoro  might  now  be  pronounced,  the  court  may  pronounce 
a  decree  for  a  judicial  separation,  which  shall  have  the  same 
force  and  the  same  consequences  as  a  divorce  a  mensa  et  thoro 
now  has."  Section  27  provides  that  "it  shall  be  lawful  for 
any  husband  to  present  a  petition  to  the  said  court,  praying 
that  his  marriage  may  be  dissolved  on  the  ground  that  his 
wife  has,  since  the  celebration  thereof,  been  guilty  of  adultery. 

1  104  HI.,  35.    2  28  Ala.,  565.    4  Johns  Ch.,  343.    3  14  Mass.,  227, 


196  MAERIAGE  AND  DIVORCE. 

And  it  shall  be  lawful  for  any  wife  to  present  a  petition  to 
the  said  court,  praying  that  her  marriage  may  be  dissolved 
on  the  ground  that  since  the  celebration  thereof  her  husband 
has  been  guilty  of  incestuous  adultery,  or  of  bigamy  with 
adultery,  or  of  rape,  or  sodomy,  or  bestiality,  or  of  adultery, 
coupled  with  such  cruelty  as  without  adultery  would  have 
entitled  her  to  a  divorce  a  mensa  et  thoro,  or  of  adultery 
coupled  with  desertion,  without  reasonable  excuse,  for  two 
years,  or  upward.  Alimony  may  also  be  decreed,  and  dam- 
ages obtained  against  a  co-respondent.  Decrees  are  always 
conditional  for  six  months,  at  the  expiration  of  which  they 
may  be  made  absolute.  It  shall  be  lawful  for  the  respective 
parties  to  marry  again  as  if  the  prior  marriage  had  been 
dissolved  by  death." 

In  Scotland  an  absolute  divorce  is  allowed  for  adultery  of 
either  spouse,  or  malicious  desertion  for  four  years.  The 
effect  of  divorce  is  to  restore  both  parties  to  the  status  of  un- 
married persons,  but  the  party  guilty  of  adultery  cannot 
marry  the  particeps  criminis,  if  so  stated  in  the  decree.  And 
a  judicial  separation  is  granted  for  cruelty,  or  for  adultery 
either,  at  the  election  of  the  injured  party. 

In  Ireland  there  is  no  absolute  divorce  by  courts,  but  they 
have  suits  for  divorce  a  mensa  et  thoro,  and  nullity  of  mar- 
riages. 

-     VII. 

In  France  both  marriage  and  divorce  are  regulated  by  the 
Code  Napoleon.  Age  of  legal  consent  is  eighteen  for  the  male 
and  fifteen  for  the  female.  The  male  must  have  the  consent 
of  the  father  if  he  be  under  25,  and  the  female  if  under  21,  or 
that  of  the  mother,  if  the  father  be  dead.  If  both  be  dead, 
the  grandfather  and  grandmother  take  the  place.  Even  after 
the  above  ages,  consent  must  still  be  asked  up  to  30  and  25 
respectively.  And  when  parents  and  grandparents  are  dead, 
before  parties  are  25  and  21  respectively,  consent  of  family 
council  must  be  had,  and  many  other  precautions  are  re- 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.          197 

quired.  A  foreign  marriage  of  French  subjects  is  recognized, 
provided  consent  of  parents  and  publication  of  banns  is  ob- 
served. The  husband  or  wife  may  have  a  divorce  for 
adultery,  excesses,  cruelty,  or  serious  injury,  or  for  a  sen- 
tence to  corporal  or  infamous  punishment.  The  divorce 
system  under  this  code  is  very  complicated  and  has  been  fre- 
quently changed,  but  it  constitutes  the  law  of  divorce,  not 
only  in  France,  but  in  several  of  the  German  provinces  as 
well. 


VIII. 

In  Belgium,  the  husband  can  be  divorced  for  adultery  of 
wife,  and  if  the  husband  commits  adultery  with  female  at  his 
home,  the  wife  may  obtain  a  divorce  for  that  cause.  Either 
may  procure  divorce  for  excesses,  cruelty  or  grave  injuries, 
or,  being  condemned  to  an  infamous  punishment  on  the  part 
of  the  defendant,  but  when  the  cause  is  excesses,  cruelty  or 
grave  injuries,  a  decree  can  only  be  granted  of  divorce  a 
mensa  et  thoro,  with  an  allowance.  When  the  husband  is  at 
least  25  years  old  and  the  wife  at  least  21,  and  have  been 
married  at  least  two  years,  a  divorce  may  be  allowed  on  the 
mutual  and  persevering  desire  or  consent  of  both  parties, 
expressed  as  prescribed  by  law,  under  the  conditions  and  de- 
sires which  show  that  life  together  is  insupportable.  But  it 
is  inadmissable  after  twenty  years  of  married  life,  or  when 
the  wife  shall  have  reached  her  45th  year,  and  it  must  be 
approved  by  the  parents  or  nearest  living  relatives,  but  a 
judicial  hearing  must  be  had,  and  great  care  is  exercised  by 
courts  to  see  that  the  consent  and  desire  is  not  forced  or 
feigned. 

IX. 

In  Austria  the  law  concerning  both  marriage  and  divorce 
is  very  elaborate  and  strict.  Insane,  idiotic  and  feeble- 
minded persons,  minors,  and  persons  of  an  unsuitable  age  to 


198  MARRIAGE  AND  DIVORCE. 

contract  obligations,  must  have  consent  of  father,  or  of  the 
guardian,  and  the  court.  Minors  of  illegitimate  birth  must 
have  consent  of  guardian  and  courts,  and  minors  of  foreign 
birth,  if  not  able  to  obtain  consent  of  father,  must  obtain 
consent  of  court.  Consent  is  refused  when  income  is  not 
competent,  or  party  is  immoral,  has  contagious  disease,  or 
defects  of  mind  or  body,  contrary,  or  destructive  to,  objects 
of  marriage.  Fear,  abduction  or  duress  are  grounds  for  re- 
fusal. When  wife  is  pregnant  by  another  upon  marriage,  the 
same  is  voidable  at  election  of  husband. 

Impotence  before  marriage  is  good  ground  for  divorce. 
A  person  sentenced  to  imprisonment  cannot  marry  till  end 
thereof.  Polygamy  expressly  forbidden.  Those  clergy  con- 
secrated to  celibacy  cannot  marry,  nor  Christians  and 
pagans.  Consanguinity  and  affinity  bar  marriage,  likewise 
adultery  bars  marriage  between  the  participants.  A  valid 
marriage  must  have  prior  publication  by  banns. 

There  are  provisions  for  divorce  a  mensa  et  thoro  by 
mutual  consent  or  by  decree  for  adultery  or  conviction  of 
crime,  abandonment,  leading  a  disorderly  life,  attempts  on 
life  or  health  of  plaintiff,  gross  ill-treatment,  repeated  insults 
or  lasting  bodily  defects,  with  fear  of  contagion ;  long  con- 
tinued absence  will  work  a  dissolution  of  marriage. 

Catholics  cannot  be  absolutely  divorced,  but  others  may  be 
for  adultery,  commission  of  crime  punishable  by  five  years 
imprisonment,  malicious  abandonment  or  non-appearance 
after  one  year's  solicitation,  assault  endangering  life  or 
health,  repeated  cruelty,  unconquerable  aversions  on  account 
of  which  both  parties  desire  a  divorce.  But  in  the  last  case, 
a  divorce  a  mensa  et  thoro  must  first  be  sought. 


X. 

In  Hungary,  marriage  is  decreed  to  be  a  civil  contract. 
Minors  cannot  marry  without  the  consent  of  father,  or,  if 
dead,  the  paternal  grandfather.  If  both  are  dead,  the  guar- 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.          199 

dian's  consent,  approved  by  court,  is  necessary.  If  parental 
consent  is  refused,  the  party  may  appeal  to  the  courts.  To 
marry  without  prescribed  consent,  is  void.  Marriage  be- 
tween a  Christian  and  a  pagan  is  void.  Marriage  between 
both  legitimate  and  illegitimate  blood  relations  is  void. 
Persons  who  have  committed  adultery,  cannot  intermarry. 
Marriage  committed  through  fear  or  mistake  may  be  an- 
nulled if  there  has  been  no  voluntary  cohabitation.  Publica- 
tion of  banns  requisite  to  legal  marriage.  When  a  mar- 
riage is  declared  void,  all  rights  and  obligations  growing  out 
of  it  cease.  Custody  of  children  vested  in  father,  and  both 
parents  must  contribute  to  support  and  education.  Divorce 
may  be  had  if  a  missing  spouse  is  80  years  old,  and  missing 
for  ten  years ;  or  if  not  heard  from  for  thirty  years ;  or  if 
exposed  to  war,  shipwreck  or  extreme  peril,  and  not  heard 
from  for  three  years.  Divorce  may  also  be  had  among 
Protestants  for  attempt  upon  life,  adultery,  wilful  desertion, 
unconquerable  aversion  or  enmity  when  both  of  the  parties 
demand  divorce,  but  only  after  a  limited  divorce.  Both 
parties  may  remarry,  but  not  the  person  who  was  the  cause 
of  divorce.  A  limited  divorce  may  be  had  for  gross  ill-treat- 
ment or  seduction  to  vice  and  degradation. 


XI. 

In  Switzerland,  free  consent  is  essential  to  the  validity  of  a 
marriage,  and  no  consent  in  cases  of  force,  fraud  or  mistake 
of  person.  Parental  consent  is  required  in  cases  of  parties 
under  20  years,  and  no  marriage  is  valid  except  male  be  18 
and  female  16.  A  marriage  of  a  person  already  married  is 
void ;  also  between  blood  relatives  of  ,all  grades,  legitimate  or 
illegitimate ;  also,  likewise,  certain  instances  of  affinity. 
Lunatics  and  idiots  can  not  marry,  and  widows,  divorced 
women  and  women  whose  marriages  have  been  declared  void, 
can  not  marry  until  the  expiration  of  300  days.  Official  an- 
nouncement required  of  all  marriages.  Objections  may  be 


200  MARRIAGE  AND  DIVORCE. 

made,  and  marriage  must  be  public  and  upon  notice.  If 
both  parties  ask  for  divorce,  the  court  will  grant  it,  if  it  ap- 
pears that  further  cohabitation  is  impracticable. 

Divorces  may  be  granted  for  adultery  after  six  months' 
knowledge;  attempt  upon  life;  ill-treatment,  or  a  serious  in- 
jury to  honor  or  reputation :  sentence  to  a  degrading  pun- 
ishment ;  wilful  desertion  for  two  years,  after  six  months' 
judicial  summons  to  return ;  incurable  mental  disease  of 
three  years'  duration.  The  guilty  person  cannot  marry  for 
one  year :  or  three  years,  in  discretion  of  court.  Court  has 
jurisdiction  for  incompatibility  of  temper  to  grant  decree  of 
divorce  armensa  et  thoro  for  two  years.  A  marriage  procured 
through  force,  fraud  or  mistake,  may  be  avoided  if  suit  is 
brought  within  three  months. 


XII. 

In  Sweden,  divorce  may  be  granted  by  the  Ecclesiastical 
court,  the  consistory  of  royal  court,  consistory  of  Stock- 
holm, and  by  the  king  in  council,  for  adultery,  wilful  deser- 
tion, illicit  intercourse  of  either  party  with  third  person  before 
marriage  but  after  betrothal,  or  by  woman  before  betrothal ; 
impotence  or  sterility,  or  incurable  contagious  disease  con- 
tracted before  marriage  and  concealed:  attempt  by  either 
party  against  the  life  of  the  other ;  sentence  to  banishment 
or  imprisonment  for  life,  if  the  other  party  was  innocent  of 
the  crime ;  incurable  insanity,  if  the  other  party  was  not  the 
cause  thereof ;  and  the  king  may  divorce  for  an  infamous 
crime,  drunkenness,  extravagance  or  violent  behavior,  or  in- 
compatibility of  temper.  In  case  of  persistent  discord,  the 
court  may  decree  a  limited  divorce  for  limited  time.  If  di- 
vorce is  granted  for  adultery  of  husband,  he  forfeits  one-half 
the  communal  property ;  if  for  adultery  of  wife,  she  forfeits 
her  own  dowry.  The  party  guilty  of  adultery  may  not  re- 
marry unless  the  other  party  has  died,  or  remarried,  or  given 
consent  with  king's  authority. 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.  201 

XIII. 

In  Denmark,  divorce  may  be  decreed  for  adultery,  deser- 
tion, impotence,  contagious  disease  existing  at  date  of  mar- 
riage, unknown  to  other  party ;  sentence  to  imprisonment 
for  life ;  mutual  consent.  Legal  separation  may  be  decreed 
for  cruelty,  serious  injury,  or  other  acts  which  render  life 
unendurable ;  or  a  legal  separation  may  be  secured  by  mutu- 
al consent.  Adultery  is  no  cause  if  induced  by  mutual 
malconduct,  nor  if  either  party  is  equally  culpable.  Five 
years'  unexplained  absence  is  good  cause,  or  three  years' ma- 
licious absence.  Impotence  must  have  existed  before  mar- 
riage, and  be  incurable.  The  innocent  party  may  marry, 
and  the  opposite  party  after  three  years,  by  leave  of  the 
king,  but  cannot  marry  accomplice  in  adultery. 


XIV. 

In  the  German  Empire,  the  legal  age  of  consent  is  twenty 
and  sixteen  years  respectively ;  under  the  age  of  twenty-five 
and  twenty-four,  respectively,  the  parental  consent  must  be 
had ;  if  the  father  is  dead,  consent  of  the  mother,  or,  if  she 
be  dead,  of  the  guardian,  must  be  had.  Marriage  is  prohib- 
ited in  cases  of  consanguinity,  guardian  and  ward,  or  adul- 
terer and  particeps  criminis.  Women  cannot  marry  till  ten 
months  from  the  end  of  their  prior  marriage.  Banns  must 
be  published,  and  ceremony  had  before  civil  officer. 
The  marriage  ceremony  is  very  formal  and  deliberative.  Di- 
vorce is  governed  by  the  local  laws  of  each  state  or  province 
in  the  Empire. 

In  Baden,  causes  of  absolute  divorce  are :  Adultery  of 
the  wife;  same  of  the  husband,  if  he  keeps  the  particeps 
criminis  at  his  home ;  sentence  of  either  to  an  infamous  pun- 
ishment ;  on  public  proclamation  of  disappearance ;  absence 
for  three  years;  three  years'  insanity;  mutual  consent,  if 
life  is  insupportable. 


202  MAKEIAGE  AND  DIVOKCE. 

In  Elsass  Lothringen,  the  causes  for  permanent  divorce 
are :  Adultery  of  the  wife,  or  of  the  husband  if  he  keeps  his 
particeps  criminis  at  his  house ;  excesses,  cruelty  or  grave  in- 
jury committed  by  either  party ;  condemnation  to  an  in- 
famous punishment;  the  mutual  and  persistent  desire  of 
either  for  divorce,  upon  proof  that  life  is  insupportable. 


XV. 

In  Saxony,  the  causes  of  divorce  are :  Adultery,  sodomy 
or  bestiality,  criminal  relation  with  children  under  twelve : 
bigamy :  one  year's  desertion :  one  year's  refusal  to  cohabit : 
self-caused  impotency ;  to  a  wife  if  husband  has  incurable 
disease  rendering  cohabitation  dangerous  to  life :  three  years' 
incurable  insanity  supervening  after  marriage:  assault 
with  intent  to  kill,  or  cruelty,  endangering  life ;  sentence  for 
crime  to  three  years :  habitual  drunkenness :  change  of  re- 
ligion :  disappearance  for  considerable  length  of  time.  Tem- 
porary separation  may  be  had  for  serious  quarrels,  likelihood 
that  life  or  health  of  children  may  be  imperilled :  leading  an 
immoral  life.  Party  may,  at  discretion,  sue  first  for  a  sep- 
aration. 

XVI. 

In  Wurtemberg,  civil  courts  may  grant  divorce  to  Catho- 
lics for  adultery.  Causes  for  temporary  divorce  among 
Catholics  are:  Apostacy  from  Christianity:  conversion  to 
Judaism  or  Islamism :  apostacy  from  Catholic  Church :  seduc- 
tion to  vice  or  felony :  inciting  to  sodomy :  pollution,  etc. 
Cruelty  or  assault  and  injury  to  life  or  health :  long-standing 
grievance  or  mortification :  diseases  acquired  by  lust  which 
are  contagious :  wilful  desertion :  violation  of  duty  endanger- 
ing the  civil  or  property  rights  of  the  other :  dangerous  men- 
tal derangement  and  mania  for  drink :  impotence  acquired 
during  marriage :  pregnancy  of  female  by  third  party :  sen- 
tence to  imprisonment  for  years. 


FOREIGN  MARRIAGE  AND  FOREIGN  DIVORCE.          203 

Causes  for  divorce  among  Protestants  are  as  follows,  viz. : 
Adultery,  fornication  of  a  betrothed  person  after  betrothal 
with  a  third  party,  wilful  desertion,  refusal  of  wife  to  perform 
domestic  duties,  or  of  either  party  to  cohabit  for  a  year,  at- 
tempt upon  the  life  of  one  of  the  parties,  incest,  sodomy, 
attempt  upon  the  life  of  an  own  begotten  child,  sentence  to 
penal  servitude  for  ten  or  more  years  if  other  party  innocent, 
cruel  and  bitter  enmity  endangering  life  of  other  spouse.  No 
divorce  from  bed  and  board ;  temporary  judicial  separation 
one  year. 

Among  Jews,  the  following  causes :  Adultery  of  wife, 
apostacy  from  Judaism,  sundry  transgressions  of  Mosaic 
morals  by  wife,  wilful  desertion  and  depriving  wife  of  means 
of  subsistence,  refusal  to  cohabit,  impotence,  loss  of  virginity 
of  female  before  marriage,  certain  loathsome  or  diseased 
condition  of  husband,  crime  by  husband  necessitating  his 
flight  to  foreign  parts,  repugnance,  hatred  or  cruelty,  condi- 
tionally. 

XVII. 

In  Prussia,  there  are  in  operation  three  systems  of  di- 
vorce law :  The  general  Prussian  law,  the  common  law,  the 
civil  code.  The  Code  Napoleon  is  operative  in  the  provinces 
bordering  on  the  Ehine.  The  following  are  general  causes 
for  divorces :  Adultery,  wilful  desertion,  refusal  to  co- 
habit, self-caused  impotence,  assault  upon  life,  health,  lib- 
erty or  honor,  false  accusation  of  serious  crime  endangering 
life,  honor  or  office  of  either,  natural  or  inculpable  impotence, 
frenzy  or  insanity,  commission  of  crime  by  one  against  the 
other,  disorderly  conduct  or  mode  of  life,  refusal  of  support 
by  the  husband,  unconquerable  aversions.  Common  law 
causes  are  adultery,  sodomy  or  bestiality,  wilful  desertion, 
refusal  to  cohabit,  cruelty  and  assault,  involving  danger  to 
health  or  life,  sentence  to  imprisonment  in  a  penitentiary  for 
two  or  more  years,  false  accusations. 


204  MARRIAGE  AND  DIVORCE. 

XVIII. 

In  Hamburg,  divorce  may  be  granted  for  adultery,  physi- 
cal incapacity,  voluntary  abandonment  for  two  years  of  wife, 
or  three  years  of  husband.  If  wife  is  pregnant  at  marriage  by 
another  man,  a  sentence  of  nullity  may  be  decreed.  When 
divorce  is  for  adultery,  guilty  party  cannot  remarry. 


XIX. 

In  the  Netherlands,  a  divorce  may  be  granted  for  adultery, 
malicious  abandonment,  sentence  to  imprisonment  for 
four  years,  severe  bodily  injury  or  maltreatment,endangering 
life,  by  agreement  after  five  years'  legal  separation ;  separa- 
tion from  bed  and  board  authorized  for  violence,  maltreat- 
ment and  outrageous  insults. 


XX. 

In  Roumania,  divorce  may  be  had  for  adultery  of  wife  or 
of  husband  if  paramour  is  taken  to  home,  violence,  cruelty 
or  serious  injury,  or  condemnation  to  an  ignominious  or 
criminal  punishment,  mutual  and  continued  desire  of  both 
parties,  with  proof  that  life  is  insupportable. 


XXI. 

In  Russia,  divorce  is  granted  to  members  of  the  Greek 
church  for  adultery,  impotence  or  sterility,  condemnation  to 
a  punishment  entailing  loss  of  civil  rights,  and  exile  or  de- 
portation, desertion  without  tidings  for  five  years. 


XXII. 

In  Poland,  causes  for  divorce  are  adultery,  assault  in- 
volving serious  injury,  commission  of  crime,  or  forcing  others 
to  do  so,  by  mutual  cpnsent,  if  reasons  are  satisfactory  to  the 
court. 


FOEEIGN  MAEEIAGE  AND  FOREIGN  DIVOECE.  205 

XXIII. 

In  Finland,  the  following  are  causes :  Adultery,  cruelty 
or  assault  involving  serious  injury,  sentence  for  infamous 
crime,  desertion,  incurable  insanity. 


XXIV. 

In  Italy,  the  grounds  for  divorce  are  adultery  of  wife,same 
of  husband  if  he  publicly  maintains  paramour  at  home  or 
elsewhere,  voluntary  abandonment,  excesses,  cruelty,  threats 
and  grave  injuries,  condemnation  of  one  of  the  parties  for 
crime ;  or  the  wife  may  demand  a  separation  if  the  husband 
fails  to  establish  a  home  in  accordance  with  his  means  and 
rank  in  life.  Separation  may  be  demanded  by  mutual  agree- 
ment, or  cross  demand,  or  by  one  alone. 

Divorce  a  vinculo  matrimonii  was  first  allowed  in  Ireland 
in  1871,  in  Austria  in  1868,  in  Switzerland  and  Germany  in 
1876.  It  would  seem  to  have  followed  in  the  wake  of,  and  as 
an  adjunct  to,  advancing  enlightenment,  for  it  seems  to  have 
prevailed  all  over  the  civilized  world,  except  in  South 
Carolina. 

XXV. 

In  Nova  Scotia,  any  marriage  may  be  dissolved  or  declared 
null  and  void  for  impotence,  adultery,  or  kindred  within  the 
degrees  prohibited  in  an  act  made  in  the  32d  year  of  King 
Henry  VIII.  

XXVI. 

In  New  Brunstvick,  the  causes  are  frigidity  or  impotence, 
adultery,  or  consanguinity  within  the  prohibited  degrees. 


XXVII. 

In  Prince  Edward's  Islands,  causes  for  divorce  are  frigid, 
ity  or  impotency,  adultery,  consanguinity  within  prohibited 
degrees ;  but  it  is  needless,  as  but  two  divorces  have  ever 
been  granted  there. 


206  MARRIAGE  AND  DIVORCE. 

XXVIII. 

In  British  Columbia,  the  causes  are  the  same  as  in  the 
English  divorce  courts.  In  Ontario  no  power  seems  to  exist 
except  such  as  arose  under  the  ordinary  Chancery  practice  to 
declare  a  marriage  null  for  fraud,  duress,  lunacy  and  in- 
fancy ;  and  alimony  may  also  be  allowed  to  the  wife.  In 
Quebec,  a  marriage  maybe  declared  void  for  impotence ;  and 
divorce  may  be  allowed  for  adultery  by  wife,  adultery  by 
husband  if  he  keeps  paramour  in  the  home ;  ill-usage,  out- 
rage or  grievous  insult. 


XXIX. 
THE  «  UTAH  "  DIVOECE  LAW 

AND    PRACTICE    THEREUNDER. 

The  first  section  conferred  jurisdiction  on  the  Probate 
court.  The  second  section  provided  that,  "  The  petition  for 
a  bill  of  divorce  must  be  made  in  writing,  upon  oath  or 
affirmation,  and  must  state  clearly  and  specifically  the  causes, 
on  account  of  which  the  plaintiff  seeks  relief.  If  the  court 
is  satisfied  that  the  person  so  applying  is  a  resident  of  the 
territory,  or  wishes  to  become  one,  and  that  the  application  is 
made  in  sincerity,  and  of  her  own  free  will  and  choice,  and 
for  the  purpose  set  forth  in  the  petition,  the  court  may  de- 
cree a  divorce  from  the  bonds  of  matrimony  against  the 
husband  for  any  of  the  following  causes,  to  wit :  (Here  fol- 
low list  of  causes) :  And  a  husband  may  obtain  a  divorce 
from  his  wife  also.  Here  is  a  copy  of  a  petition : 

"Nelson  F.  Hood  vs.  Maggie  H.  Hood.  In  the  Probate 
court  of  Beaver  county,  Territory  of  Utah.  The  plaintiff 
complains  and  alleges  that  plaintiff  and  defendant  are  hus- 
band and  wife;  that  they  intermarried  at  Jeffersonville, 
State  of  Indiana,  on  the  3d  day  of  July,  1869,  and  ever  since 
have  been,  and  now  are,  husband  and  wife ;  that  plaintiff 
wishes  to  become  a  resident  of  Beaver  county,  Utah,  but  is 
so  situated  that  he  cannot  at  present  carry  his  desires  into 
effect.  (He  then  recites  some  of  the  statutory  causes  for 
divorce  in  Utah).  Signed,  NELSOU  F.  HOOD, 

A.  GOODRICH,  Plff's  Atty. 

And  it  was  sworn  to  before  Goodrich  as  Comr.  for  Utah, 
and  a  decree  duly  obtained.  (I  may  state  that  Goodrich 
used  to  charge  $100  for  these  divorces — $25  cash  and  $75 
-when  he  got  decree — and  that  he  used  to  send  the  decree  to 


208  MABKIAGE  AND  DIVORCE. 

non-residents  by  express,  C.  0.  D.)  The  decree  in  this  case 
recited :  "  That  said  parties  cannot  live  in  peace  and  union 
together  and  that  their  welfare  requires  a  separation,  and 
that  the  plaintiff  wishes  to  become  a  resident  of  the  county 
of  Beaver,"  etc.  In  this  case,  after  plaintiff  obtained  his  de- 
cree, he  married  an  estimable  young  lady  of  Kentucky,  and 
lived  with  her  as  his  wife.  Being  indicted,  he  was  convicted 
of  bigamy  and  sentenced  to  imprisonment.  The  Supreme 
court  sustained  the  sentence,  holding  the  former  marriage 
binding,  and  the  latter  null  and  void.  Court  gave  its  reason 
thus :  "  Hood  desired  to  obtain  a  divorce  from  his  wife. 
Neither  of  the  parties  were  under  the  jurisdiction  of  Utah. 
The  petition  of  Hood  and  the  decree  of  divorce  expressly 
state  this  fact.  If  he  was  not  a  citizen  and  resident  of  Utah, 
he  was  of  some  other  State  or  nation.  Still  the  court  of 
Utah  grants  a  divorce  to  a  man  who  informs  it,  in  his  appli- 
cation, that  he  is  under  a  jurisdiction  other  than  that  of  the 
Territory  of  Utah,  and  that  he  is  not  subject  to  hers.  The 
divorce  manifestly  was  granted  in  violation  of  the  sovereignty 
and  jurisdiction  of  another  State,  and  in  violation  of  the 
plainest  principles  of  international  and  constitutional  law. 
The  provision  in  the  State  of  Utah,  authorizing  the  courts 
to  grant  divorces  to  citizens  of  foreign  states  and  nations 
who  were  not,  but  desired  to  become,  residents  of  Utah,  was 
ultra  vires  and  void.  *  *  To  give  jurisdiction  in  a  divorce 
suit,  the  plaintiff,  or  petitioning  party,  must  be  a  resident  of 
the  State  or  territory  where  the  divorce  is  obtained.  And 
this  decision  was  sustained  in  every  case  where  the  question 
arose,  and  it  came  up  in  several  different  States.1 

1  56  Indiana,  263.  16  Indiana,  429.  25  Indiana,  380.  46  Iowa,  437. 
52  Iowa,  85.  13  Hun.,  414.  19  Kansas,  451.  54  Iowa,  459.  25  Minn.,  29. 
13  Bush,  31 8. 


XXX. 
JURISDICTION. 

Jurisdiction  is  the  power  to  hear  and  determine  a  cause 
or  controversy.  Divorce  was  unknown  to  the  common  law, 
but  was  cognizable  by  the  ecclesiastical  courts  in  England. 
Hence  we  have  no  common  law  of  divorce,  but  in  all  States, 
except  South  Carolina,  we  have  statutory  jurisdiction  con- 
ferred. South  Carolina,  except  under  negro  rule,  has  never 
recognized  divorce  in  any  way,  and  thus,  is  as  austere  in  its 
outward  marital  morals,  as  it  was,  in  1861,  flagitious  in  its 
politics.  Courts  of  Chancery,  in  the  exercise  of  chancery 
powers,  might  annul  a  marriage  for  fraud,  accident  or  mis- 
take in  its  making,  like  any  contract,  or  for  duress  of  the 
complaining  party,  but  otherwise  the  power  of  the  courts  in 
matters  of  divorce  are  derivable  only  from  express  statute, 
which  power  must  be  strictly  pursued,  and  nothing  can  be 
taken  by  intendment,  or  by  implication.  This  is  termed  by 
lawyers,  jurisdiction  over  the  subject  matter.  If  a  court,  hav- 
ing no  authority  at  all  on  the  subject,  exercises  the  authority 
in  such  a  case,  or,  having  a  limited  authority,  exceeds  its 
authority  in  vital  matters:  in  either  case,  its  action  is  a 
nullity.  Thus,  if  a  New  York  court  should  attempt  to  grant 
a  divorce  for  desertion,  that  being  no  statutory  cause  there, 
or  if  an  Illinois  judge  should  grant  a  decree  for  insanity, 
that  being  no  cause  there,  either  of  such  decrees  would  be  a 
nullity  and  void.  Nor  can  consent  confer  jurisdiction.1 

Of  equal  importance  is  it  to  acquire  jurisdiction  over  the 
parties.  If  a  New  York  citizen  should  file  a  bill  for  divorce 
against  his  wife  in  the  State  of  Illinois  (she  also  being  in  the 


1  6  Pet.,  691.  12  Pet.,717.  5  Harr  &  J.,  130.  8  Ore.,  322.  18  Wall.,  371.  3 
N.  J.,  523.  6  Post.,  240.  6  Wheat.,  125.  2  How,  GO.  99  Mass.,  273.  27  Ala., 
397.  60  111.,  333.  11  Wend.,  648.  7  Hill,  10.  1  Denio.,  158.  3  Chand.,8.  5 
Post.,  303.  33  N.  H.,  238.  ib.,  167.  10  Bush.,  269.  8  How.  Pr.,  99.  63  N.  Y., 
460.  7  Sawy.,  401.  13  O.  S.,  439.  3  O.  S.,  499.  3  Mete.,  462.  31  Barbour,  061. 


210  MARRIAGE  AND  DIVORCE. 

State  of  New  York),  the  court  would  have  no  jurisdiction 
over  either  party ;  and  the  bill  would  be  dismissed  by  the 
court  of  its  own  motion,  if  the  fact  appeared  in  either  the 
pleadings  or  proofs. 

When  courts  exercise  a  special  and  statutory  authority, 
these  proceedings  stand  on  the  same  footing  with  those  of 
courts  of  limited  and  inferior  jurisdiction,  and  will  be  invalid, 
unless  the  authority  in  which  they  are  founded  has  been 
strictly  pursued.1 

Divorce  is  a  special  and  statutory  authority,  not  recog- 
nized by  the  common  law,  and  the  proceedings  in  relation  to  it, 
stand  on  the  same  footing  with  those  of  courts  of  limited  and 
inferior  jurisdiction, so  that  its  power  in  the  case  must  be  shown 
and  appear  to  have  been  strictly  pursued.2  The  jurisdiction  of 
inferior  courts  must  appear  on  the  face  of  their  proceedings, 
and  extend  to  the  parties  as  well  as  to  the  cause  of  action ; 
and  the  acts  of  such  tribunals  will  be  invalid  unless  the  rec- 
ord shows  affirmatively  that  the  defendant  appeared,  or  was 
summoned,  or  was,  in  some  way,  notified  of  the  suit,  and  of 
the  necessity  of  answering  what  was  alleged  against  him ; 
and  when  want  of  notice  appears  affirmatively  on  the  record, 
or  by  any  other  legitimate  means  of  proof,  the  defect  will  be 
fatal.3  A  judgment,  inpersonam,  rendered  without  notice  or 
appearance,  or  a  sufficient  excuse  for  want  of  notice,  will  be 
regarded  as  invalid  by  foreign  tribunals,  and  if  binding  at 
home  can  only  be  so  by  force  of  positive  law.  A  Connecti- 
cut or  Illinois  divorce  is  no  defense  to  an  indictment  for  big- 
amy in  Massachusetts4  or  Pennsylvania,  unless  it  appears  of 
record  that  both  were  legally  before  the  court,  and  subject  to 
its  authority.5  A  divorce  granted  to  the  husband  may  be 
avoided  collaterally  by  evidence  that  the  wife  was  not  domi- 
ciled in  the  State  when  the  decree  was  pronounced,  was  not 
served  with  process,  and  did  not  appear.6  While  a  decree  or 

il  Smith,  Lead.  Gas.,  1127.  297  Mass.,  540.  25  Minn.,  37.  96  N.  Y.,  463.  39 
Wis.,  171.  319  Johns.  39.  11  Mass.,  507.  8  Vt.,  373.  7  S.  &  M.,  85.  4  Binn.,  97.  11 
Mass.,  507.  3  Cow.,  59.  11  Wend.,  647.  27  Ala.,  391.  95  U.  S.,  714.  27  Ala.,  391. 
106  U.  S.,  350.  *97  Mass.,  538.  555  Penn.,  375.  697  Mass.,  338.  12  P.  F.  Smith,  308. 
15  Johns.,  140. 


JURISDICTION.  211 

judgment  which  stands  unreversed  and  in  force,  cannot  be 
called  in  question,  or  impeached  in  collateral  proceedings  by 
one  of  the  parties  to  the  original  suit,  it  is  a  very  different 
proposition  to  maintain  that  an  innocent  party  cannot  invoke1 
the  power  of  the  court  by  which  the  original  judgment  or 
decree  was  rendered,  to  /vacate  and  annul  it  on  the  ground 
that  it  was  procured  by  a  fraud  practiced  upon  the  court,  to 
his  gross  injury.  Courts  of  justice  have  pow- 

er, on  proceedings  had,  to  set  aside  or  vacate  their  judg- 
ments and  decrees,  whenever  it  appears  that  an  innocent 
party,  without  notice,  has  been  aggrieved  by  a  judgment  or  de- 
cree obtained  against  him  or  her  without  his  knowledge,without 
the  fraud  of  the  other.  Where  a  decree  of  divorce  has  been  ob- 
tained by  fraudulent  means  and  false  representations  as  to 
parties'  domicil  and  residence,  which  gave  the  court  an  ap- 
parent jurisdiction  in  a  case  where  there  was  no  rightful  jur- 
isdiction, the  injured  party  may,  within  reasonable  time 
after  discovery  of  the  fraud,  have  such  decree  set  aside  on  a 
bill  filed  to  impeach  the  same.2 

That  a  judgment  is  conclusive  upon  parties  and  privies 
is  a  proposition  not  to  be  denied ;  but  if  a  court  has  acted 
without  jurisdiction,  the  proceeding  is  void,  and  if  this  ap- 
pears on  the  face  of  the  record,  the  whole  is  a  nullity.3  To 
give  any  binding  effect  to  a  decree  it  is  essential  that  the 
court  shall  have  jurisdiction  of  the  person  and  the  subject 
matter;  and  the  want  of  jurisdiction  is  a  matter  that  may 
always  be  set  up  against  a  judgment  when  sought  to  be  en- 
forced, or  when  any  benefit  is  claimed  under  it ;  the  want  of 
jurisdiction  makes  it  utterly  void  and  unavailable  for  any 
purpose.  No  lawyer  will  controvert  the  position  that  to  up- 
hold and  give  validity  to  the  proceedings  of  a  court,  it  must 
have  jurisdiction  of  the  person  of  the  defendant  and  of  the 
cause.  This  principle  is  applicable  to  all  courts,  from  the 
lowest  to  the  highest.  Judgments  of  all  courts  are  void  in 
absence  of  jurisdiction ;  but  that  while  the  jurisdiction  of 

^OS  Mass.,  597.  2120I11.,  377.  311  Wend.,  652.  15  Johns.,  141.  19  Johns.,  133. 


212  MARRIAGE  AND  DIVORCE. 

superior  courts  will  be  presumed  unless- manifestly  wanting, 
no  such  intendment  can  be  made  in  case  of  inferior  courts, 
and  their  proceedings  will  be  nullities  unless  they  show  juris- 
diction over  cause  and  parties.  A  judgment  may  be  attacked 
on  the  ground  that  defendant  did  not  appear  and  was  not 
served,  even  though  the  record  says  otherwise.1  A  decree  of 
divorce  obtained  by  fraud  is  void,  has  no  binding  effect,  and 
may  be  impeached  and  set  aside,  even  though  a  subsequent 
marriage  by  one  of  the  parties  may  have  been  consummated, 
and  children  born  of  such  marriage.2  Where  there  is  a 
cause  of  action  arising  from  a  fraud,  the  statute  of  limita- 
tions will  not  begin  to  run  until  the  discovery  of  the  fraud, 
if  due  diligence  to  discover  it  has  been  used,  provided  any 
fact  existed  to  put  the  party  upon  inquiry.3 

A  court  of  general  jurisdiction  may  have  specific  powers 
wholly  derived  from  statute,  not  exercised  according  to  the 
course  of  the  common  law,  and  which  do  not  belong  to  it  as  a 
court  of  general  jurisdiction.  In  such  cases,  its  decisions 
must  be  regarded  and  treated  like  those  of  courts  of  limited 
and  special  jurisdiction.  The  jurisdiction  in  such  cases,  both 
as  to  the  subject-matter  of  judgment,  and  as  to  the  person 
to  be  affected  by  it,  must  appear  by  the  record,  and  every- 
thing will  be  presumed  to  be  without  the  jurisdiction,  which 
does  not  distinctly  appear  to  be  within  it. 

These  sections  are  in  derogation  of  the  common  law,  and 
must  be  strictly  pursued,  in  order  to  give  the  court  jurisdic- 
tion over  the  person  of  the  defendant.  A  failure  to  comply 
with  the  rule  then  presented  in  any  particular,  is  fatal  when 
it  is  not  cured  by  appearance.4  When  the  special  powers 
conferred  are  exercised  in  a  special  manner,  not  according 
to  the  course  of  the  common  law,  or  when  the  general  powers 
of  the  court  are  exercised  over  a  class  of  cases  not  within  its 
ordinary  jurisdiction,  upon  the  performance  of  prescribed 
conditions,  no  such  presumption  of  jurisdiction  will  attend 

115  Tex.,  500.  24  Tex..  551.  13  Gray,  591.  1  Clarke,  588.  24  Mete.,  335. 
120  111.,  389.  108  Mass.,  590.  30  Wis..  452.  346  Iowa.  648.  Ib-,  437.  2  Sto.  Eq., 
J..  1521  a.  *  5  Foster,  302. 


JtJKISDICTlOtf.  213 

the  judgment  of  the  court.  The  facts  essential  to  the  exer- 
cise of  the  special  jurisdiction  roust  appear  upon  the  record.1 

In  cases  where  a  court  of  general  jurisdiction  exercises 
a  special  power  conferred  upon  it  by  statate,  not  according 
to  the  course  of  the  common  law,  it  must  strictly  comply  with 
all  the  requirements  of  the  statute  in  its  proceedings,  and 
this  compliance  must  affirmatively  appear  from  the  record 
itself,  and  unless  it  does  so  appear,  no  presumption  will  be 
indulged,  to  sustain  the  validity  of  its  judgments  or  decrees.2 

The  law  of  the  place  of  the  actual  domicil  of  the  parties 
governs  in  all  cases  of  divorce,  regardless  of  the  place  where 
the  marriage  was  celebrated.3 

What,  then,  is  domicil? 

I  answer :  that  place  is  properly  the  domicil  of  a  person 
in  which  he  has  voluntarily  fixed  the  habitation  of  himself 
and  his  family  (if  he  has  a  family),  not  for  a  mere  special 
and  temporary  purpose,  but  with  a  present  intention  of  mak- 
ing it  his  permanent  home,  unless  and  until  something 
(which  is  unexpected  or  the  happening  of  which  is  uncer- 
tain), shall  occur  to  induce  him  to  adopt  some  other  perma- 
nent home.4 

*  *     *     Where  he  kas  jjjg  true,  fixed  permanent    home 
and  principal  establishment,  and  to   which,  whenever  he  is 
absent,  he  has  the  intention  of  returning.5 

*  *     *     The  established,  fixed,  permanent  or  ordinary 
dwelling  place,  or  place  of  residence  of  a   person,  as  distin- 
guished from  his  temporary   and  transient,  although  actual, 
place  of  residence.     It  is  his  legal  residence  as  distinguished 
from  his  temporary  place  of  abode ;  or  a  home,    as    distin- 
guished  from   a  place   to   which  business  or  pleasure  may 
temporarily  call  him.6 

*  *    *     When  a  person  has  fixed  his  habitation  and  has 
a  permanent   residence,    without    any  present  intention   of 
removing  therefrom.7     In  international  law,  domicil  means  a 

1  18  Wall.,  350.  2  8  Ore.,  322.  3  13  Johns.,  194.  19  Ala.,  499.  Story  Couf.  Laws, 
s.  230  a.  *  Kindersley  V.  C.,  in  Lord  v.  Colvin,  4  Drew,  376.  5  42  Vt.,  350.  9  Ired., 
99.  Bouvier's  Law  Diet.  6  20  Conn.,  74.  7  4  Barb.,  504. 


MARRIAGE  AND  DIVORCE. 

residence  at  a  particular  place,  accompanied  with  positive  or 
presumptive  proof  of  intending  to  continue  there  for  an  un- 
limited time.1  A  residence  at  a  particular  place,  accompa- 
nied with  an  intention  to  remain  there  for  an  unlimited  time, 
is  a  residence  accepted  as  a  final  abode.2 

The  place  in  which  the  person  has  taken  up  his  perma- 
nent residence,  and  to  which,  when  he  is  absent  from  it,  he 
has  the  intention  of  returning ;  residence,  as  determining  the 
municipal  law  to  which  a  man  is  subject.3 

A  recent  case  made  the  following  statement  as  to  the 
domicil  and  status  of  parties :  "Marriage  is  a  civil  status. 
The  rights  and  obligations  of  the  parties  are  not  merely  con- 
tractual, but  are  fixed,  changed  or  dissolved  by  law.4  In  case 
of  a  conflict  of  laws,  the  lex  domicilii  controls  the  status  of 
the  person,  though  his  contractual  or  property  rights  may  be 
subject  to  other  laws.5  The  State  has  the  absolute  right  to 
declare  or  alter  the  civil  status  of  all  its  inhabitants,  no 
matter  where  they  may  temporarily  be,  and  no  matter  where 
the  contracts  or  acts  giving  rise  to  such  status  may  have 
been  made  or  done.  Other  States  or  countries  will,  in  this 
matter,  accept  without  question  the  declaration  of  the  courts 
of  the  home  State.  But  the  State  has  this  power  only  over 
its  own  inhabitants.  The  mere  presence  within  its  limits  of 
the  inhabitants  of  other  States  gives  it  no  authority  to  fix  or 
change  their  status.  The  State  of  their  residence  still  re- 
tains its  control  over  that.  It  alone  can  free  its  citizens  from 
marital  obligations.  Any  proceeding  of  another  State  to 
that  end,  will  be  ineffectual  and  will  be  disregarded  elsewhere. 
In  this  case  the  marriage  was  in  this  State,  and  the  parties 
lived  here  for  awhile  Party  got  a  divorce  in  Illinois,  and 
the  court  then  found  and  declared,  that  he  was  an  inhabitant 
of  Illinois.  (U.  S.  Const.,  Art.  IV.,  Sec.  1.)  It  has  been 
settled,  however,  by  judicial  construction,  that  the  constitu- 
tional provision  only  applied  when  it  appeared  that  this 
court  had  jurisdiction  in  fact.  The  clause  quoted  does  not 

1  32  N.  J.  Law,  192.    2  Wharton's  Law  Diet.    3  Burrill's  Law  Diet.    *  18  Wall., 
457.  95  U.  S.,  914.    *-  122  Mass.,  156.  41  N.  Y.,  272.  46  N.  Y.,  30. 


JURISDICTION.  215 

make  a  court's  own  declarations  of  its  jurisdiction  binding  on  the 
courts  of  other  States.  One  court  cannot  by  a  simple  ipse  dixit 
compel  other  courts  to  yield  jurisdiction.  It  has  been  repeat- 
edly held,  therefore,  that  a  court's  jurisdiction  can  always  be 
inquired  into,  even  against  the  express  recitals  and  findings 
of  the  court.  In  the  case  at  bar  the  residence  of  the  party 
at  the  time,  was  the  one  fact  which  would  uphold  or  defeat 
the  jurisdiction  of  the  Illinois  courts.  The  judge  declined  to 
be  bound  by  the  recitals  of  the  Illinois  court.  Sustained. 
If  the  Illinois  court  had  no  jurisdiction  over  the  status  of 
the  husband,  by  reason  of  his  non-residence  in  that  State, 
he  being  an  inhabitant  of  this  State,  that  court  could  not 
effectually  make  any  decree  for  any  cause.  Its  decree  for 
whatever  cause  would  be  void  for  want  of  jurisdiction  over 
the  person  of  libellant.1  Kesidence  means  "a  legal  resi- 
dence," not  an  actual  residing  alone,  but  such  a  residence 
as  that  when  a  man  leaves  it  temporarily,  or  on  business,  he 
has  an  intention  of  returning  to,  and  which,  when  he  has  re- 
turned, becomes,  and  is,  de  facto  and  dejure,  his  domicil,  his  res- 
idence.2 There  must  be  a  fixed  habitation,  with  no  intention 
of  removing  therefrom.3  The  alleged  decree  of  divorce  ob- 
tained by  the  husband  was  without  any  notice  to  the  wife  in 
a  country  wherein  neither  party  ever  resided,  and  for  an 
alleged  cause  wholly  fraudulent.  It  is  therefore  void.41  Will 
vacate  decree  or  treat  it  as  a  nullity.5  Jurisdiction  of  a  di- 
vorce suit  is  not  sustained  by  a  residence  taken  up  for  the 
mere  purpose  of  bringing  the  suit,  although  it  is  continued 
for  the  length  of  time  required  by  law,  and  may  be  shown  to 
be  void  by  evidence  aliunde.6  (The  case  of  Kinnear,  45  N.  Y., 
535,  and  case  of  Cheever  v.  Wilson,  18  Wall.,  appear  to 
enunciate  a  contrary  doctrine ;  but  they  have  no  force  as 
authority.  They  are  mere  stumbling-blocks.) 

Held  in  Wisconsin,  that  the  law  meant  an  actual  residence, 

i  78  Me  187.  42  N.  J.  Eq.,  152.  41  N.  Y.,  272.  76  N.  Y.,  78.  101  N.  Y.,  23.  108 
N  Y  ,  628  19  Neb.,  706.  52  Mich.,  117.  56  Wis.,  195.  3  Me.  A.,  415.  25  Minn.,  29. 
2  1  Iowa,  36.  36  Iowa,  10  108  Mass.,  590.  51  N.  H.,  588.  s  46  Iowa,  437.  4  19  Kan., 
451.  56  Ind.,  263.  122  Mass.,  156.  5  20  N.  Y.  S.,  414.  28  N.  J.  Eq.,  315.  •  25  Mich., 
247.  46  N.  Y.,  30.  55  Barb.,  269. 


216  MAKRIAGE  AND  DIVOKCE. 

"actual  and  bonafide,  animo  manendi  (with  the  intention  of 
remaining.) " 

If  a  party  goes  to  a  new  State  with  intent  to  reside  in  the 
latter,  although  the  main  purpose  be  divorce,  it  is  good.  As 
I  have  elsewhere  intimated,  divorce  law  is  not  logical  or 
uniform;  and  cases  can  be  found  in  various  States,  not  only 
contradictory  of  each  other,  but  hardly  based  upon  under- 
stood legal  principles  i1  and  I  recollect  a  case  about  alimony  de- 
cided in  71st  Alabama,  which  the  same  court,  within  a  few 
years  thereafter,  expressly  overruled  because  of  the  utter 
impracticability  of  maintaining  the  first  decision.2 

In  New  Hampshire  it  has  been  held  that  courts  will  not 
take  jurisdiction  of  a  cause  for  divorce  arising  out  of  the 
State,  unless  complainant  at  the  time  was  domiciled 
there.  3 

In  Texas,  it  has  been  held  that  courts  have  jurisdiction 
though  defendant  be  permanently  resident  abroad,if  the  mar- 
riage was  solemnized  in  Texas  and  the  act  committed 
there.  4  In  Missouri  it  is  held  that  a  non-resident  wife  can 
not  sue  husband  for  divorce,  although  the  husband  resided, 
and  the  cause  accrued,  in  Missouri.  5 

One  of  the  most  important  and  interesting  questions  which 
confront  the  profession  and  society  at  this  time  is  what  effect 
a  decree  of  divorce  rendered  in  one  State  will  have  in  another : 
i.  e.,  of  what  avail  or  value  is  the  decree  of  a  Dakota  or  Col- 
orado (or  any  other)  court  in  New  York  or  any  other  State 
than  that  in  which  it  is  rendered  ?  No  definite  answer  can  be 
furnished  to  such  question,  because  the  practice  is  not  only  not 
uniform  among  the  States  themselves,  but  it  is  not  uniform 
in  the  same  State  at  different  periods  of  time. 

The  rule  was  supposed  to  be,  that  a  decree  fairly  rendered 
on  substituted  service  by  publication  according  to  the  lex  fori, 
was  valid  anywhere,  and  it  was  generally  so  held,  notably  in 
Rhode  Island,  New  York  and  by  the  Supreme  court  of  the 

1  39  Wi8.,651.     2  36  N.  W.  Kep.,607.    8  58  N.  H.,  283.    «  54  Texas,261.     6  6  Mo., 


JURISDICTION.  217 

U.  S. :  the  case  of  Ditson,  4  E.  L,  being  especially  well  reasoned 
and  elaborate :  but  the  tendency  of  courts,  of  late  years,  has 
been  to  check  the  obtaining  of  unmerited  and  fraudulent  de- 
crees in  States  other  than  those  of  the  true  domicil ;  and,  pur- 
suing this  tendency,  they  have  inclined  to  impinge  upon  what 
had  been  supposed  to  be  an  established  principle ;  viz. :  that  a 
valid  divorce  obtained  in  one  State  was  also  valid  and  had  the 
same  effect  in  all  other  States  that  it  did  in  the  State  of  its 
origin.  The  observance  of  this  principle  did  not  aid  &  fraud- 
ulent divorce.  It  only  pertained  to  valid  divorce,  untainted  by 
fraud;  but,  as  the  law  is  now  adjudged  in  many  jurisdictions, 
a  decree  of  one  State  rendered  on  substituted  service  is 
unavailing  in  another  State. 

In  a  case  in  the  Supreme  court  of  the  United  States,  it 
was  held  that  substituted  service  by  publication,  or  in  any 
other  authorized  form,  is  sufficient  to  inform  a  non-resident  of 
the  object  of  proceedings  taken  when  property  is  once  brought 
under  the  control  of  the  court  by  seizure  or  some  other  equiv- 
alent act ;  but  when  the  suit  is  brought  to  determine  his  per- 
sonal rights  and  obligations;  that  is,  where  it  is  merely  in 
personam,  such  service  is  ineffectual  for  any  purpose. l  Pro- 
cess from  the  tribunals  of  one  State  can  not  run  into  another 
State  and  summon  a  party  there  domiciled  to  respond  to  pro- 
ceedings against  him,  and  publication  of  process  or  of  notice 
within  the  State  in  which  the  tribunal  sits  can  not  create  any 
greater  obligation  on  him  to  appear.  Process  sent  to  him 
out  of  the  State,  and  process  published  within  it,  are  equally 
unavailing  in  proceedings  to  establish  his  personal  liability. 
"In  respect  to  such  suits  in  personam  *  *  *  there  is  no 
pretense  to  say  that  such  modes  of  proceeding  can  confer  any 
legitimate  jurisdiction  on  foreigners  who  are  non-residents 
and  do  not  appear  to  answer  the  suit,  whether  they  have  no- 
tice of  the  suit  or  not.  The  effects  of  all  such  proceedings  are 
purely  local,  and  elsewhere  they  will  be  held  to  be  nullities.  "2 

1  95  U.  S.,  714.  18  Wall,  457. 11  How.,  165.  5  Mass..  35. 9  How.,  336.  Story's  Confl. 
Laws,  sec.  546.   2  Story's  Confl.  Law,  546. 


218  MARRIAGE  AND  DIVORCE. 

In  Illinois,  under  their  Chancery  jurisdiction,  a  decree 
rendered  upon  publication  can  be  opened  up  and  a  defence 
made  at  any  time  within  three  years,  and  then,  five  years  are 
allowed  to  bring  writ  of  error,  file  a  bill  to  impeach,  etc.,  so 
that  a  decree  on  publication  in  that  State  is  not  stable  till 
eight  years  have  elapsed  from  its  date. 

In  a  recent  case  there  the  husband  obtained  a  divorce 
on  a  notice  by  publication  in  September,  1869.  The  wife, 
who  was  in  New  York,  did  not  learn  of  it  till  May,  1883 ; 
she  then,  on  December  22,  1883,  filed,  in  the  same  court,  a 
bill  in  the  nature  of  a  bill  of  review,  to  impeach  the  de- 
cree for  fraud,  and  her  action  was  sustained.  Her  hus- 
band, meanwhile,  had  married  again  and  raised  a  family 
by  the  second  wife,  but  the  court  remorselessly  held  that"al- 
though  the  party  had  re-married  and  had  children,  it  made 
no  difference  about  impeaching  the  decree,  if  the  same  was 
obtained  by  fraud.  >n 

Parties  married  in  New  Jersey  and  lived  together  as 
man  and  wife  for  nine  months,  and  then  separated.  The 
wife  left  the  State  and  became  a  resident  of  Michigan  bona 
fide ;  and  after  the  proper  statutory  residence,  commenced 
suit  for  divorce — made  constructive  service  by  publication, 
procured  a  decree,  and,  returning  to  New  Jersey,  married 
again,  and  then  she  and  the  second  husband  went  to  Michi- 
gan, where  they  resided  and  continued  to  reside,  ammo  ma- 
nendi.  The  first  husband  had  not  any  notice  of  the  Michi- 
gan suit  till  after  a  decree.  After  she  married  the  second 
time,the  first  husband  brought  suit  for  divorce  in  New  Jersey, 
alleging  adultery  with  the  second  husband.  Court  said:"The 
decree  of  divorce  obtained  in  Michigan  is  *  *  *  a  nullity. 
Whatever  its  effect  in  Michigan,  it  must  be  held  here  to  be  of 
no  effect ;  and  consequently  it  must  be  adjudged  that  the 
marriage  between  the  parties  *  *  still  subsists.  It  follows, 
that  that  decree  constitutes  no  warrant  or  legal  justifi- 
cation in  this  State  for  the  defendant's  intercourse  with  the 

1 120  111.,  377.  51  N.  H.,  388.  108  Mass.,  590.  23  Kan.,  513.  73  111.,  577.  6 
Minn.,  458.  15  Johns.,  12.  30  Wis.,  667.  1  Johns.,  424. 


JUKISDlCTlOff. 

Second  husband,  and  cannot  be  interposed  to  shield  her  from 
the  consequences  thereof  in  this  suit ;  and  it  matters  not 
where  that  intercourse  took  place,  whether  in  this  State  or 
elsewhere."1 

In  People  vs.  Baker  the  husband  married  the  wife  in 
Ohio  in  1871.  They  lived  together  in  New  York  till  1872, 
when  the  wife  returned  to  Ohio  and  resided  there  continu- 
ously till  1876,  when  she  died: — that  in  1874  the  wife 
brought  suit  for  divorce  in  Ohio  against  the  husband,  who 
continued  to  reside  alone  in  New  York  and  made  publica- 
tion according  to  requirements  of  the  Ohio  law,  and  obtained 
a  divorce ;  then  she,  in  Ohio,  married  a  second  husband,  and, 
after  living  with  him  one  year,  died.  The  divorce  was  grant- 
ed in  June,  1874.  On  November  14,  1874,  the  first  husband 
married  a  second  wife  in  New  York  and  was  indicted  for,  and 
convicted  of,  bigamy.  The  conviction  on  appeal  to  the 
Court  of  Errors  was  sustained,  the  court  stating  the  question 
thus :  "Can  a  court  in  another  State  adjudge  to  be  dis- 
solved, and  at  an  end,  the  matrimonial  relations  of  a  citizen 
of  this  State,  domiciled  and  actually  abiding  here  throughout 
the  pendency  of  the  judicial  proceedings  there,  without  a 
voluntary  appearance  by  him  therein,  and  with  no  actual  no- 
tice to  him  thereof,  and  without  personal  service  of  process  on 
him  in  that  State  ?"  and  the  court  decided  in  the  negative : 
and  the  man  served  out  his  sentence.  2 

The  constitution  of  the  United  States  provides  that;  "Full 
faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records  and  judicial  proceedings  of  every  other  State, 
and  the  congress  may,  by  general  laws,  prescribe  the  manner 
in  which  such  acts,  records  and  proceedings  shall  be  proved : 
and  the  effect  thereof."  3 

And  the  judiciary  law  of  congress,  of  May  26th,  1790,  after 
providing  a  method  of  authentication,  further  enacted :  "And 
the  said  records  and  proceedings,  authenticated  as  aforesaid, 

»42N.  J.,Eq.,154  (1886).  1  Stew.  Eq.,  581.  31  Barb.  69.  276  N.  Y.,  78.  15 
John  121.  13  Wend.,  407.  12  Barb.,  640.  41  N.  Y.,  272.  46  N.  Y.,  3O.  1  Dev.  &  Bat., 
576.  1  Johns.,  524.  60Barb.,  108.  4  Dana.,  388.  4  Paige,425.3  Const.  Art  IV.,  Sec.  I. 


220  MARBIAGE  AND  DIVORCE. 

shall  have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States  as  they  have  by  law  or  usage  in  the 
courts  of  the  State  from  which  the  said  records  are  or  shall  be 
taken."1 

Under  this  law  it  has  been  held,  over  and  over  again,  with 
nothing  contra,  that :  "When  a  judgment  or  decree  of  the 
courts  of  another  State  is  sought  to  be  enforced  in  a  court  of 
this  State,  the  court  in  this  State  may  inquire  into  the  juris- 
diction of  the  court  which  rendered  the  judgment  or  decree: 
and  if  it  appears  that  the  court  has  no  jurisdiction,  the  judg- 
ment or  decree  is  void :  but,  if  it  had  jurisdiction,  the  decree 
is  valid  and  binding  in  this  State."  In  deciding  upon  the 
effect  to  be  given  to  a  judgment  or  decree  so  rendered  in  an- 
other State,  it  must  be  regarded  as  well  settled  that  the  record 
of  decree  must  have  the  same  effect  in  this  State  as  in  the  State 
where  it  is  rendered.  2  Again :  "  'This  full  faith  and  credit,' 
however,  to  be  given  to  the  record  of  another  State,  is  limited 
to  cases  where  the  courts  have  obtained  jurisdiction." 
"Courts  cannot  obtain  jurisdiction  over  a  citizen  of  another 
State  without  personal  service  in  their  own  State."  "Even 
personal  service  in  the  State  of  defendant's  residence  would 
not  give  jurisdiction  in  the  divorce"  State.  Even  when  a 
prosecution  for  bigamy  is  made  on  a  marriage  after  such  a 
divorce,  it  is  not  essential  to  prove  intent  or  guilty  knowl- 
edge. 3 

On  the  contrary,  it  is  stated  by  one  of  our  highest  legal 
authorities :  That  courts  of  the  State  where  the  complaining 
party  resides,  has  jurisdiction  of  the  subject  matter,  and,  if  the 
other  party  is  a  non-resident,  they  must  be  authorized  to  pro- 
ceed without  personal  service.  The  publication  which  is  per- 
mitted by  statute  is  sufficient  to  justify  the  granting  of  a 
decree,  changing  the  status  of  complainant,  and  thereby  ter- 
minating the  marriage.  And  it  is  immaterial  whether  notice 
was  actually  brought  home  or  not.  And  it  might  also  be 

1  Rev.  Stat.  U.  S.,  2  27  W.  Va.,  167.  25  Mich.,  247.  55  Barb,,  269.  18  Wall.,  457 
67  How.,  N.  Y.  Pr.,  144.  *  18  Wall.,  457.  7  Cr.,  481.  6  Wend  ,  448-  1  Dev.  &  Bat. 
576.  1  Johns.,  425.  41  N.  Y.,  272.  4  Paige,  425.  25  N,  Y.,  390.  76  N.Y-,  78. 


JURISDICTION.  221 

sufficient  to  decide  the  question  of  custody  of  children,  if 
within  the  jurisdiction.  But  court  cannot  make  a  decree  for 
the  payment  of  money  by  the  defendant  not  served  and  not 
appearing,  not  even  for  costs.  It  is  limited  to  a  divorce  and 
custody  of  children  within  the  State.1  1  Gill,  and  Johns.  463. 
4  Ham.,  440.  10  Ohio,  28.  19  Ala.,  499.  9  Me.,  140.  4  Barb., 
295. 

The  contrary  has  been  held,  notably  in  76,  N.  Y.  78 ;  101 
N.Y.,  23,  and  108  N.  Y.,  628.  In  a  case  which  came  up  in 
the  Supreme  court  of  the  United  States  it  was  held  that  a 
decree  of  divorce  valid  and  effectual  by  the  laws  of  the  State 
where  it  was  obtained  is  valid  and  effectual  in  all  other  States. 
Whether  the  finding  of  the  court  of  domicil  in  which  the  decree 
was  founded,  is  conclusive  or  only  prima  facie  sufficient,  is  not 
decided.2  But  in  a  later  case  it  was  decided  that  the  court 
had  authority  to  inquire  into  the  jurisdiction.3  The  most 
elaborately  reasoned  case  in  support  of  this  doctrine,  that  it  is 
"sufficient  if  one  of  the  parties  is  domiciled  there,  and  citation 
need  not  be  personally  served,"  is  in  Ehode  Island.4  And  in 
another  cause,  the  court  said :  "Where  it  is  a  foreign  divorce, 
it  don't  matter  whether  or  not  it  is. for  a  cause  not  good  where 
it  is  attempted  to  be  used.  If  it  be  not  fraudulent  and  the 
court  had  jurisdiction,  it  binds  the  world." 

However,  in  a  case  which  arose  in  North  Carolina,  and 
where  a  decree  obtained  in  Tennessee  was  attempted  to  be 
used,  the  court  refused  to  be  bound  by  it,  saying:  "It  was  not 
an  adjudication  between  any  parties,  since  the  wife  did  not 
appear  in  the  suit,  nor  was  served  with  process,  and  was  not 
a  subject  of  Tennessee,  but  was  a  citizen  and  inhabitant  of 
this  State,  and  therefore  not  subject  to  the  jurisdiction  of 
Tennessee,  nor  amenable  to  her  laws."6 

In  Massachusetts,  held  that  a  judgment  of  a  court  of 
competent  jurisdiction,  having  jurisdiction  of  the  subject  and 
of  the  parties,  by  legal  process  duly  served  where  no  appeal, 

1  Cooley's  Const.  Lim.,  499.  2  Strob.  Eq.,  174.  3  Wis.,  662.  4  B  L.  87  80 
Ky.,  353.  28  Ala.,  12.  42  N.  J.  Eq.,  152.  1  Johns.,  424.  7  Dana,  181.  76Ind., 
123.  4  Chand.,  97.  28  Wall.,  108.  10  Tex.,  355.  2  Blackf.,  407.  Wright,  286.  318 
Wall.,  457.  *4  B.  t,  87.  °1  Dev.  &  Bat.  Eq.,  568. 


222  MABBIAGE  AND  DIVORCE. 

writ  or  error  or  bill  for  review  or  other  legal  process,  lies  for 
revision  affirming  or  reversing  such  judgment,  or,  when  no 
such  process  is  commenced  by  the  party  who  would  avoid  the 
judgment  in  the  mode  and  within  the  time  prescribed  by  law, 
is  conclusive  upon  the  same  parties  in  any  other  proceeding 
in  law  or  equity,  or  before  any  other  judicial  tribunal.  In  this 
case,  the  wife  filed  a  libel  for  divorce,  and  set  up  inter  alia 
that  her  husband  had  previously  obtained  a  decree  against 
her  by  perjured  evidence.  Held,  not  good :  and  that  whether 
it  could  be  attacked  by  a  direct  proceeding  for  fraud  was  not 
decided.1 

It  has  been  so  often  held  in  New  York  latterly,  as  to  be  the 
settled  law  there,  thai  the  marriage  relation  is  not  a  res  with- 
in the  State  of  the  party  invoking  the  jurisdiction  of  a  court  to 
dissolve  it,  so  as  to  authorize  the  court  to  bind  an  absent 
party,  a  citizen  of  another  State,  by  substituted  service,  or 
actual  notice  given  without  the  jurisdiction  of  the  court  where 
suit  is  pending. 

The  regulation  of  the  marriage  relation,  and  of  the  acts  or 
neglects  that  may  amount  to  a  good  cause  for  sundering  that 
relation,  is  a  matter  of  internal  police  important  to,  and  affect- 
ing not  only  the  parties  to  that  relation,  but  the  well-being  of 
the  State.  It  would  seem  it  should  be  administered  wholly 
by  the  courts  of  the  State  where  the  declared  violations  of  the 
marriage  relations  occur,  or  where  the  parties  are  domiciled 
at  the  time.  The  acts  relied  upon  for  the  cause  of  divorce 
must  have  accrued  while  the  parties  were  subject  to  the  law 
of  the  forum,  where  the  divorce  was  granted.  Otherwise  the 
courts  in  one  jurisdiction  might  determine  and  administer  the 
marriage  relations  between  citizens  domiciled  in  another  juris- 
diction. This  would  allow  one  jurisdiction  to  pass  laws,  in 
the  language  of  Lord  Ellenboroughin  9  East,  192,  "to  bind  the 
rights  of  the  whole  world,  a  proposition  too  absurd  to  re- 
quire refutation."2  And  in  some  of  these  decisions,  the  doc- 

»  2  Gray.  634.    * 13O  N.  Y.,  93.    120  H.  Y.,  485.    1O8  N.  Y.,  415.    IO1  K-  Y..  23- 

flOHun.,  180.    47Vt.,672.    10  Ma*w^  26O.     14  Maw.,  227.    2  Gray,  369.    7  Watt* 

7  Dana,  181.     2  Strobh.  Bq.,  174.     9  La..  317.      1  Der.  &  Bat.  Eq.,  568.     15 

John*.,  121 .  13  Wend.,  407.  2  Black/.,  407.  19  Ala.,  499.  76  N.  Y.,  78.  31  Barb.,  69. 


JUEISDICTK'  : .  223 

trine  is  squarely  stated  to  be,  that  the  decree  rendered  in  a 
suit  for  a  divorce,  in  a  State  where  the  cause  of  action  did 
not  accrue,  and  where  the  parties  were  not  then  living  as  hus- 
band and  wife,  and  where  the  defendant  in  the  proceedings 
never  was  served  with  process,  nor  voluntarily  submitted  to  the 
jurisdiction  of  the  eourt,  is  whollj  void  in  any  other  jurisdic- 
tion than  the  one  in  which  it  was  Tendered.1 

In  Michigan,  it  was  adjudged  that,  where  a  husband 
resides  in  one  State  and  the  wife  in  another,  either 
State  has  authority  in  reaped  to  the  marriage  relation  to  de- 
termine on  its  validity  or  to  dissolve  it  so  far  as  the  party 
resident  within  its  limits  is  concerned,  and  if  one  proceeds  in 
one  State.such  procedure  is  no  impediment  to  the  other  taking 
like  steps  in  the  other  State  where  it  is  necessary  to  protect 
property  r ;  c'Lt  - .  - 

The  doctrine,  which  is  mote  logical,  and  has  been  more 
generally  understood  by  the  profession  to  he  correct,  is  that  a 
judgment  of  divorce  rendered  by  the  court  of  another  State 
against  a  domiciled  citizen  thereat,  upon  a  substituted  ser- 
vice (as  publication),  such  as  the  law  of  the  State  has  author- 
ized in  the  case  of  an  absent  defendant,  is  valid  inpersonam  so 
as  to  effect  a  dissolution  of  the  marriage  contract,  and  is  con- 
clusive on  the  defendant  in  the  courts  of  this  State,  although 
he  was  not  within  the  territorial  jurisdiction  during  the  pro- 
gress of  the  suit,  and  did  not  appear  therein.*  But  it  is  held 
that  a  temporary  residence,  selected  with  any  other  intention 
than  that  of  making  it  a  domicQ  permanently,  is  not  sufficient, 
even  if  extended  the  proper  length  of  time.*  In  England  it 

held  that  a  divorce  pronounced  by  a  foreign  eourt  between 
who  had  contracted  marriage  in  England,  and  who 
to  be  domiciled  in  England,  on  grounds  which 
would  not  justify  such  a  divorce  in  England  is  not  good  in 
another  jurisdiction.*  And  it  has  been  repeatedly  held  ifcat  a 
fivofce  gra-vri  m  a  Stbr,e  where  li^tL-r  parly  fifes, 


224  MAEEIAGE  AND  DIVOECE. 

I  here  state  some  points  made  in  a  recent  closely  con- 
tested case :  When  these  parties  were  born,  their  parents 
were  residents  of  New  York.  From  the  time  the  defendant 
(the  husband)  was  four  or  five  years  old,  he  was  with  his 
parents  in  Europe  and  New  York,  alternately.  In  1868, 
plaintiff  went  to  Dresden  and  married  defendant;  soon 
after,  the  parties  came  to  New  York — thence  went  to  Color- 
ado, in  the  fall  of  1870,  returned  to  Dresden;  remained  till 
1881,  when  plaintiff  returned  to  New  York.  Dresden  was  by 
them  treated  as  their  European  home,  and  they  traveled 
much  in  Europe.  *  The  question  whether  he 

had  ceased  to  be  a  resident  of  New  York  was  dependent  upon 
his  intention. 

The  defendant  was  not  without  his  domicil, 
and  unless  another  was  acquired  by  him  elsewhere,  he  retained 
his  domicil  of  origin.  And  to  effect  a  change  of  it,  the  fact 
and  intent  must  concur.  In  legal  phraseology,  residence  is 
synonomous  with  inhabitancy  or  domicil.  *  *  The 
defendant,  however,  obtained  a  divorce  from  the  plaintiff  in 
Dresden,  Germany,  and,  if  such  was  obtained  according  to 
the  laws  of  Germany,  and  the  parties  were  domiciled  there, 
"although  the  defendant  in  it  was  then  absent  from  the  em- 
pire and  did  not  in  any  manner  appear  in  the  action."  In 
such  case  a  party  whose  domicil  is  in  a  country,  is  subject 
to  its  laws  and  jurisdiction  of  his  person  as  well  as  of  the 
subject  matter,  and  jurisdiction  may  be  acquired  by  the  court, 
in  the  manner  provided  by  its  laws.  But  a  court  has  no 
extra-territorial  jurisdiction,  and  a  person  not  domiciled  in 
the  State  or  country  cannot  be  charged  inpersonam  by  adju- 
dication there,  unless  he  is  personally  served  with  notice  or 
process  within  it,  or  voluntarily  submits  himself  to  the  jur- 
isdiction of  its  court  by  appearing  in  some  manner  in  the 
action  or  proceeding  sought  to  be  instituted  against  him.1 

If  the  husband  has  forfeited  his  marital  rights  by  misbe- 
havior, and  has  deserted  his  wife,  they  are  capable  of  having 

1  120  N.  Y.,  485. 


JURISDICTION.  225 

different  domicils^  A  divorce  may  be  decreed  where  the  hus- 
band has  left  his  wife,  and  established  his  domicil  in  another 
State,  and  then  committed  adultery.2  The  law  of  the  domi- 
cil at  the  time  and  place  of  the  injury  is  the  rule  for  every- 
thing but  the  original  obligation  of  the  marriage.3  Although, 
in  general,  the  domicil  of  the  husband  is  the  domicil  of  the 
wife,  yet,  if  he  be  guilty  of  such  defection  of  duty  as  entitled 
her  to  have  it  partially  or  wholly  dissolved,  she  may  establish 
a  separate  jurisdictional  domicil  of  her  own.4  Although  the 
domicil  of  the  wife  is  that  of  the  husband,  yet  she  may  ac- 
quire a  distinct  domicil  of  her  own,  where  the  act  complained 
of  occurred,  for  purposes  of  divorce.5  Where  the  desertion 
occurred  in  Massachusetts,  where  the  parties  resided,  and  the 
wife  removed  to  New  Hampshire,  remaining  there  three  years, 
during  which  the  desertion  continued,  a  divorce  was  decreed.6 
The  common  law  maxim,  that  the  domicil  of  the  wife  follows 
that  of  the  husband,  has  no  application  in  an  action  for  di- 
vorce where  a  separation  has  actually  taken  place.7  In  such 
case,  the  law  will  recognize  the  wife  as  having  a  separate 
existence  and  separate  rights.  A  change  of  domicil  requires 
no  certain  length  of  time,  and  length  of  time  alone  is  not 
sufficient.  There  must  be  a  bonafide  and  permanent  intent, 
in  mind  and  in  fact. 

A  change  of  domicil  can  never  be  effected  by  intention  to 
change,  however  sincere ;  a  physical  residence  is  as  necessa- 
ry as  a  moral  intent,  and  until  such  physical  residence  is  ef- 
fected, the  old  home  continues  to  be  the  domicil.3 

The  circumstances  of  each  case  will  be  scrutinized  by 
courts  whenever  a  test  of  the  validity  of  divorces  obtained 
by  newly  fledged  citizens  of  "easy  divorce"  States  shall  be 
made. 

We  already  have  a  foreshadowing  of  what  the  courts  will 
probably  do  in  such  cases,  in  the  decision  rendered  by  the 
Chancellor  of  New  Jersey,  in  case  of  Winship  vs.  Winship, 
1  C.  E.  Green,  107.  This  was  a  case,  perfect  in  its  jurisdic- 

19  Green.,  140.    27  Wis.,  418.    214  111.  app.,  645.     87  Watt»,  349.     *4  R.  I,,  87. 
»29  Ala.,  719.    634N.  H.,  318.    7I2  How.  Pr.,  32.    14  Bradw.,  645.    812.Barb.§  640. 


226  MAKRIAGE  AND  DIVORCE. 

tional  and  technical  aspects ;  the  party  had  just  barely  ac- 
quired his  domicil  within  the  State,  and  had  a  technical  case. 
The  court,  however,  denied  the  decree  on  the  broad  ground 
hitherto  suggested ;  the  Chancellor,  alive  to  the  responsibili- 
ties of  the  occasion,  stated  the  grounds  of  his  denial  thus : 

"I  know  that  the  language  of  the  statute  is  very  broad 
and  may  in  its  terms  embrace  the  case  now  under  considera- 
tion. But  I  nevertheless  think  that  the  legislature  were  legis- 
lating for  the  citizens  of  this  State  as  contradistinguished 
from  pseudo  citizens  for  divorce  purposes,  not  for  others. 
The  subject  is  one  of  grave  importance,  and  is  daily  assum- 
ing a  more  serious  aspect.  At  this  hour,  a  large  proportion 
of  the  divorces  asked  for  in  this  court  is  by  citizens  of  other 
States,  who  come  into  this  State  for  the  mere  purpose  of  ob- 
taining a  divorce,  and  often  in  evasion  of  their  own  laws. 
There  is  too  much  reason  to  apprehend  collusion  of  parties 
in  actions  of  divorce,  in  regard  to  the  establishment  of  a 
domicil,  as  well  as  with  respect  to  the  procedure.  Conflict 
of  jurisdiction,  injury  to  morals,  reproach  to  our  law,  op- 
pression and  fraud,  as  well  as  obloquy  to  the  judicature 
which  must  administer  the  law,  are  evident  consequences 
which  must  follow  from  the  influx  of  parties  from  other  States 
to  obtain  a  dissolution  of  marriage  here,  in  opposition  to  the 
rules  of  their  own  law." 

"Marriage,  though  in  one  sense  a  contract,  because  be- 
ing both  stipulatory  and  consentual,  cannot  be  valid  with- 
out the  spontaneous  concurrence  of  two  competent  minds,  is, 
nevertheless,  sui  generis,  and  unlike  ordinary  or  commercial 
contracts,  is  publici  juris,  because  it  establishes  fundamental 
and  most  important  domestic  relations.  And  therefore,  as 
every  well  organized  society  is  essentially  interested  in  the 
existence  and  harmony  and  decorum  of  all  its  social  relations ; 
marriage,  the  most  elementary  and  useful  of  them  all,  is  reg- 
ulated and  controlled  by  the  sovereign  power  of  the  State, 
and  cannot,  like  mere  contracts,  be  dissolved  by  the  mutual 
consent  only  of  the  contracting  parties,  but  may  be  abrogated 
by  the  sovereign  will,  either  with,  or  without,  the  consent  of  both 
parties,  whenever  the  public  good,  or  justice  to  both  or  either 


JUKISDICTION.  227 

of  the  parties,  will  be  thereby  subserved.  Such  a  remedial 
and  conservative  power  is  inherent  in  every  independent 
nation,  and  cannot  be  surrendered  or  subjected  to  political 
restraint,  or  foreign  control,  consistently  with  the  public  wel- 
fare. And,  therefore,  marriage  being  more  than  a  contract, 
and  depending  essentially  on  the  sovereign  will,  is  not,  as  we 
presume,  embraced  by  the  constitutional  interdiction  of  legis- 
lative acts  impairing  the  obligations  of  contracts.  The  obli- 
gation is  created  by  the  public  law,  subject  to  the  public  will, 
and  not  to  that  of  the  parties.  So  far  as  a  dissolution  of  a 
marriage  by  public  authority  may  be  for  the  public  good,  it 
may  be  the  exercise  of  a  legislative  function ;  but,  so  far  as 
it  may  be  for  the  benefit  of  one  of  the  parties,  in  consequence 
of  a  breach  of  the  contract  by  the  other,  it  is  undoubtedly 
judicial."  Marriage  being  *  *  an 

organic  institution  in  every  civilized  and  well  regulated  na- 
tion, no  such  nation  can  preserve  its  own  social  order,  or  en- 
joy its  independent  right  to  secure  its  own  welfare  in  its  own 
way,  if  any  other  sovereign  would,  without  its  consent,  dis- 
solve or  disturb  that  domestic  relation  of  its  citizens  which  is 
most  essential  to  its  prosperity,  moral  power  or  happiness. 
To  concede  such  <i  right  of  foreign  interference  would  be  as 
suicidal  in  principle  as  to  acknowledge  foreign  control  over 
any  other  institution,  or  the  terra  firma,  of  a  State.  And 
therefore,  it  would  seem  to  be  sufficiently  obvious,  without 
the  light  of  direct  judicial  authority,  that  no  nation  should 
ever  arrogate  any  such  power  over  the  marriage  contract  of 
foreigners  not  domiciled  within  its  jurisdictional  limits,  and 
that  no  free  State,  regardful  of  its  rights  or  its  dignity, 
should  ever,  by  acquiescence  or  otherwise,  recognize  any  such 
assumed  right  of  intermeddling  with  its  domestic  institutions, 
by  any  foreign  State.''  *  There  may  be  an  exception 

in  those  cases  in  which  husband  and  wife,  while  continuing 
citizens,  either  in  law  or  in  fact,  of  one  nation,  become  bona 
fide  domiciled  within  the  jurisdiction  of  another  nation,  for 
it  seems  to  be  the  prevailing  modern  opinion  that  the  conju- 


228  MAKKIAGE  AND  DIVORCE. 

gal  rights  and  relations  may  always  be  regulated,  and  some- 
times, if  not  always,  abrogated,  by  the  sovereign  of  the  actual 
domicil,  if  established  in  good  faith.  It  is  well  settled  that 
international  jurisdiction  does  not  arise  from  the  mere  bring- 
ing of  suit  except  as  to  matters'of  status  or  other  proceedings 
in  rem.  The  defendant  must  have  been  served  with  notice 
according  to  statute  and  within  the  jurisdiction  of  the  lex 
/on,  else  must  voluntarily  appear,  to  confer  jurisdiction.1 

A  decree  of  divorce  could  only  be  void  for  want  of  juris- 
diction over  the  subject  matter,  by  reason  of  the  court 
which  rendered  it  having  no  authority  to  pronounce  such  a 
decree.  And  the  way  to  take  advantage  of  it,  is  to  raise  the 
objection  by  a  plea  in  bar,  denying  the  jurisdiction  and 
power  of  the  court  which  made  the  decree ;  and  the  proof  in 
support  would  consist  of  an  exhibit  of  the  statute  law  of  the 
State,  including  the  latest  enactments  on  that  precise  sub- 
ject. If  it  was  merely  erroneous,  it  would  have  to  be  cor- 
rected by  writ  of  error  to  the  review  court  of  the  State  which 
rendered  it. 

The  proper  way  of  taking  advantage  of  a  decree  of  an- 
other State,  which  is  alleged  to  be  void  for  want  of  jurisdic- 
tion over  the  parties,  is  by  craving  oyer  of  *the  record  and  de- 
murring to  the  bill  or  libel,  if  it  appoared  on  the  face  of  the 
record  that  there  was  no  jurisdiction,  as  in  the  "  Utah"  de- 
crees, and  most  of  the  old  "Indiana  "  decrees;  the  suit  would 
be  readily  defeated  in  this  showing.  But  if  the  record  itself 
showed  jurisdiction,  then  the  party  should  plead  that  the 
court  did  not  have  jurisdiction,  and  offer  oral  evidence  to 
prove  it.  Eecords  generally  import  absolute  verity.  Such  is 
the  rule,  but  in  divorce  cases,  one  may  impeach  the  record  as 
to  the  jurisdiction  of  the  parties,  and  show  by  evidence 
aliunde,  that  the  parties  were  not  within  the  rightful  jurisdic- 
tion of  the  court.  Such  decrees  are  simple  nullities,  and 
may  be  attacked  either  by  direct  proceedings  to  have  them 
declared  void,  or  may  be  attacked  collaterally  whenever  they 

>  7  Dana,  183. 


JUKISDICTION.  229 

arise  in  any  court,  in  any  way,  between  any  parties.  A 
court  will  not,  of  itself,  take  any  notice  of  a  void  decree.  It 
can  only  act  when,  in  any  proceeding,  a  reliance  is  placed  on 
such  decree,  or  it  is  brought  up  for  avoidance.  Then  the  court 
will  be  sedulous  and  willing  to  annul  it,  or  declare  it  to  be 
void. 

The  "  Utah "  divorces  were  much  more  abundant  than 
even  the  "  Indiana  "  divorces  had  been,  but  they  soon  began 
to  come  under  review  in  courts  of  other  States.  Wives  fre- 
quently found  themselves  divorced  without  their  knowledge, 
in  any  way.  Sometimes  they  acquiesced,  and  sometimes  re- 
belled, but  whenever  they  brought  the  "Utah"  divorce  to  a 
test  it  was  overthrown,  even  in  Utah  itself,  but,  in  the  latter 
case,  solely  on  the  ground  that  no  such  authority  could  be 
vested  in  a  Probate  court,  the  parties  both  being  domiciled  in 
the  territory.1 

Where  neither  party  has  even  a  residence  within  the 
State,  the  courts  of  the  State  resorted  to  will  refuse  to  enter- 
tain suit  for  divorce,  unless  authorized  and  required  by  statute, 
and  such  decree,  where  authorized  by  statute,  will  have  no 
effect  beyond  the  State,  even  though  both  parties  appeared 
and  submitted  to  the  jurisdiction.2 

This  doctrine  is  uncontroverted  in  every  case  where  the 
plaintiff  has  gone  from  the  State  of  his  domicil  into  the 
State  of  the  forum,  to  avoid  the  laws  of  his  or  her  own  State, 
and  obtain  a  divorce  by  the  laws  of  the  other  State,  though 
tte  defendant  appeared.3  And  it  may  be  shown  that  no 
lona  fide  residence  had  been  acquired  in  the  State  of  the 
divorce.4  Whether  the  decree  would  be  invalid  where  there 
was  no  fraudulent  purpose  in  the  departure  is  not  clear.  But 
it  would  be  strong  presumptive  evidence  of  fraud,  if  and  pro- 
vided the  parties  returned  immediately  to  the  domicil.5  All 
courts  lay  down  the  proposition  broadly  that  no  valid  divorce 
can  be  had  in  another  State  between  non-residents.  Many 

i  19  Kan.,  451.  19  Neb..  706.  136  Mass.,  328.  Cast  vs.  Cast.  1  Utah,  112. 
54  la.,  429.  56Ind.,263.  13  Bush.,  318.  13  Hun.. 414.  2  31  N.  J.  Eq.,  194.  54 
Me.,  365.  37  Ohio  St.,  317.  3  13  Gray,  209.  2  Gray,  367.  6  Gray,  157.  *  122 
Mass.,  156.  5  129  Mass.,  14. 


230  MARRIAGE  AND  DIVORCE. 

recent  cases  of  Dakota  divorces,  involving  sensational  fea- 
tures, can  be  recollected  recently,  as  that  of  "  Elaine  vs. 
Elaine,"  when  both  parties  at  once  resumed  their  domicils, 
after  the  decree  of  divorce.  As  a  rule,  the  husband  has  the 
selection  of  the  domicil,  and  the  wife  must  take  up  her  abode 
where  he  chooses,1  but  for  purposes  of  suing  for  a  divorce, 
the  wife  may  sometimes  acquire  a  separate  domicil,  as 
when  he  has  deserted  her  and  gone  to  another  State, 
or  where,  for  any  reason,  it  is  either  improper  or  unsafe  to 
live  with  him. 

The  following  is  a  summary  of  the  law  as  to  jurisdiction : 
.  (1.)  In  cases  where  a  civil  contract  would  be  annulled 
by  a  chancery  court  for  fraud,  accident,  error,  mistake,  duress 
or  coercion,  on  general  chancery  principles :  so  in  like  manner 
the  marriage  contract  may  be  annulled  without  reference  to 
divorce  law. 

(2.)  But  where  there  is  a  statutory  divorce  law  which 
provides  for  the  annulment  of  marriage  for  such  reasons ;  that 
law,  and  not  the  general  chancery  practice,  should  be  pur- 
sued. Expressio  unius  excluslo  alterius. 

(3.)  If  a  court  has  no  jurisdiction  over  divorce  by  ex- 
press statute  law,  it  can  take  no  cognizance  of  divorce  mat- 
ters at  all,  and  if  it  does  so  in  form,  its  action  will  be  ultra 
vires  and  void  in  every  sense,  and  a  nullity. 

(4.)  If  a  court  which  is  entrusted  with  authority  over 
divorce,  acts  beyond  the  power  conferred,  as  if  a  New  York 
court  should  grant  a  divorce  for  desertion,  it  is  questionable 
if  it  would  be  void  or  erroneous ;  but  probably  void. 

(5.)  If  a  decree  is  strictly  void  by  reason  that  the  court 
had  no  power  to  render  it,  it  is  a  nullity  and  can  be  so 
urged  by  any  one  anywhere,  directly  or  collaterally.  And  if 
any  one  acts  on  the  faith  of  its  validity  it  will  not  protect 
him.  A  party  who  marries,  relying  on  it,  commits  bigamy. 
An  officer  who  seizes  property  by  virtue  of  such  a  decree, 
commits  trespass. 

»  37  Ohio  St.,  347. 


JUKISDICTION.  231 

(6.)  A  decree  which  is  merely  erroneous,  can  only  be 
corrected  by  the  direct  parties  to  it,  by  writ  of  error,  appeal, 
bill  in  the  same  court  to  impeach,  or  other  direct  proceeding. 
But  third  persons  affected  by  it  can  take  advantage  of  it  col- 
laterally in  any  suit  where  it  is  attempted  to  be  used  against 
them.  The  same  principle  will  obtain  in  case  of  fraud.  » 

(7.)  A  fraudulent  decree  will  not  be  prima  facie  bad, 
unless  the  fraud  is  patent  on  its  face  (as  a  Utah  decree, 
which  on  its  face  showed  no  jurisdiction  of  the  persons),  but 
the  fraud  may  be  shown  by  the  party  interested,  and  the 
decree  annulled;  provided,  he  did  not  participate  in  the 
fraud. 

(8.)  But  a  fraudulent  decree  in  which  both  parties  par- 
ticipated  and  where  the  fraud  is  not  apparent  on  the  face  of 
the  decree,  cannot  be  attacked  by  either  party,  but  its  force 
as  against  third  persons  interested  may  be  averted  in  any 
collateral  action  in  which  it  is  raised  against  them. 

(9.)  A  mere  intermeddler  or  intruder,  having  no  interest, 
cannot  attack  any  decree,  whether  void,  voidable,  fraudulent 
or  a  nullity.  He  has  no  standing  in  court. 

(10.)  A  divorce  valid  by  the  law  of  the  State  where 
granted  is  valid  everywhere,  provided  the  court  had  juris- 
diction of  the  parties. 

(11.)  A  court  cannot  have  jurisdiction  of  the  parties, 
unless  one  of  them  was  permanently  domiciled  animomanendi 
in  that  State. 

(12.)  Whether  a  divorce  rendered  by  a  court,  without 
the  presence  of  the  defendant  in  court,  or  actual  legal  notice 
to  him,  served  within  the  State  of  the  forum,  is  valid,  or  not, 
outside  of  the  State  where  rendered,  is  unsettled.  Some 
States  decide  one  way,  and  some  the  other. 

(13.)  If  a  party  leaves  the  State  of  his  domicil  and  pro- 
cures a  divorce  in  another  State,  it  will  be  void  in  the  State 
or  his  domicil. 

(14.)  If  a  decree  of  divorce  is  granted  upon  actual  ap- 
pearance of  defendant,  or  legal  notice  to  him  in  the  State 


232  MARRIAGE  AND  DIVORCE. 

of  the  forum,  and  an  allowance  of  alimony  and  custody  of 
children  is  also  made,  such  decree  can  be  enforced  in  an- 
other State,  and  the  husband  compelled  to  pay  the  alimony, 
like  any  debt.  But  the  law  as  to  imprisonment  for  debt,  for 
contempt  and  exemption,  will  be,  not  the  law  of  the  divorce 
forum,  but  the  law  of  the  State  where  it  is  to  be  enforced. 

•  (15.)  In  case  of  a  divorce  in  one  State  and  the  attempt 
to  admeasure  dower  or  to  acquire  a  tenancy  by  the  curtesy 
in  another  State  is  made,  the  law  of  the  State  where  the  real 
estate  involved  is  situated,  governs  as  to  dower  and  curtesy. 

(16.)  Children  of  divorced  parties  cannot  by  a  direct 
proceeding  interfere  in  a  suit,  either  while  it  is  in  fieri  or 
after  a  decree,  but  they  may  claim  heirship  or  property 
rights  and  may  have  them  enforced,  and  may  show  collat- 
erally that  the  decree  was  fraudulent  or  void. 

(17.)  It  is  competent  for  persons  to  change  their  domi- 
cil,  and  if  changed  bonajide,  animo  manendi,  it  is  an  effectual 
domicil  for  divorce  proceedings,  and  in  such  case  the  law  of 
that  domicil  would  govern  in  a  divorce  proceeding,  regardless 
of  the  place  of  a  former  domicil,  or  of  the  celebration  of  the 
marriage. 

(18.)  Persons  whose  business  is  ambulatory,  may  fix 
their  domicil  where  they  may  choose,  and  it  will  be  observed 
by  courts,  but  they  must  actually  be  at  the  place  named  at  the 
commencement  of  so  claiming  it  as  a  domicil.  A  mere  in- 
tent is  not,  alone,  sufficient.  There  must  also  be  a  physi- 
cal residence,  although  the  party  may  be  absent  from  it,  as 
his  business  or  pleasure  may  require. 

(19.)  Each  State  or  nation  has  control  of  the  marital 
status  of  its  citizens  while  they  are  within  its  borders,  and 
may  prescribe  conditions  relevant  thereto,  which  will  be  en- 
forced while  they  are  within  their  limits. 

(20.)  Full  faith  and  credit  must  be  given  in  every  State 
of  our  Union  to  the  decree  of  divorce  rendered  in  another 
State,  but  the  State  may  inquire  if  the  State  of  the  former 
had  jurisdiction,  and  may  decide  that  question  for  itself. 


XXXL 
THE  PAETIES. 


A  divorce  rendered  by  a  court  which  had  no  jurisdiction 
over  the  subject  matter,  is  a  mere  nullity,  and  may  be  pleaded 
or  proven  in  any  proceeding,  either  direct  or  collateral,  either 
by  a  party  or  by  a  stranger  to  the  record.1  Where  the  jurisdic- 
tion does  not  exist,  it  is  a  usurpation  of  power  to  act,  and  the 
so-called  acts  of  the  tribunal  are  of  none  effect,  and  maybe  so 
treated  in  any  collateral  proceeding.2  In  a  case  in  Pennsyl- 
vania, a  stranger  to  the  record  attempted  to  show  that  the 
court  had  no  jurisdiction  in  the  tribunal  itself ;  but  the  court 
overruled  the  objection,  saying:  "Here  the  court  was  one  of 
general  jurisdiction.  To  it  belonged  the  subject  of  divorce, 
and  it  had  jurisdiction  of  the  parties.  It  could  only  be  at- 
tacked for  error  by  a  direct  proceeding,  and  not  collaterally."3 
When  there  is  jurisdiction  of  the  parties  and  of  the  subject- 
matter,  the  decree  is  never  void,  but  only  voidable,  when  irregu- 
lar.4 If  one  of  the  parties  to  a  suit  deems  the  decree  to  be 
voidable  or  erroneous,  he  can  only  take  advantage  of  it  on  ap- 
peal, writ  of  error  or  bill  of  review,  or  bill  in  the  nature  of  a 
bill  of  review;  but  the  attack  must  be  direct,  and  can  never  be 
collateral :  until  the  decree  is  reversed,  set  aside,  or  modified  he 
is  bound  by  it ;  but  other  parties  than  the  direct  parties  to  the 
suit  may  be  injured  or  affected  in  their  property  or  other 
rights  by  the  decree,  and  may  claim  that  it  is  fraudulent  or 
erroneous.  In  such  case  they  cannot  disturb  the  decree,  but 
may  avoid  its  force  as  to  them  by  an  attack  collaterally ;  i.e., 

1  74  Iowa,  92.  9  Ga.,  130.  11  N.  H.,  191.  24  Tex.,  391.  10  Pet.,  449.  10  Gas,,  489. 
3  40  Pa.  St.,  155.  *  10  Pet.,  449.  10  Gas.,  489. 


234  MAREIAGE  AND  DIVORCE. 

without  trenching  on  the  decree  itself  they  may  avoid  its 
effect  upon  them  by  showing  its  fraudulent  or  erroneous  char- 
acter, by  proof  aliunde.  But  no  one  can  question  a  decree 
except  a  party  to  it,  or  some  one  whose  rights  are  impaired 
by  it.  A  parent  applied  to  court  to  annul  decree  of  a  divorce 
to  which  his  son  was  a  party :  held,  that  he  had  no  standing 
in  court  to  justify  it.1 

While  it  is  quite  true  that  fraud  vitiates  everything,  it  ii 
equally  true  that  no  one  can  complain  except  he  be  injured.  He 
must  establish  a  special  injury  to  himself.  An  alleged  fraudu- 
lent decree  will  not  be  judicially  scrutinized  on  application  of 
any  outside  party  unless  his  right  be  affected,  and  then  not  by 
a  direct,  but  by  a  collateral,  proceeding,  or  a  collateral  inquiry 
or  investigation  in  a  pending  suit.  The  leading  case  is  thus : 
"The  defendant  gave  in  evidence  her  marriage  with  one  M. 
Plaintiff  showed  a  sentence  in  the  ecclesiastical  court,  and  the 
charge :  For  that  at  the  time  of  solemnizing  it,  defendant 
was  married  to  D.,  which  the  plaintiff's  counsel  relied  on  as 
conclusive  evidence  of  the  nullity  of  such  pretended  mar- 
riage with  M.,  and  so  it  was  agreed,  unless  the  defendant 
might  be  permitted  to  show  fraud  in  obtaining  the  sentence, 
and  to  avoid  it  by  restriction  of  fraud.  The  court  took  a 
distinction  between  the  case  of  a  stranger  who  cannot 
come  in  and  reverse  the  judgment,  and  therefore  must,  of 
necessity,  be  permitted  to  aver  that  it  is  fraudulent,  and 
the  case  of  one  who  is  a  party  to  the  proceeding.  If 
he  (the  party)  pleads  the  judgment  was  fraudulent,  he  can- 
not give  evidence  of  it,  but  must  apply  to  the  court  which 
pronounced  the  sentence,  to  vacate  the  judgment,  and  if  both 
parties  colluded  it  was  never  known  that  either  of  them 
could  vacate  it.  The  defendant  in  this  case  was  a  party  to 
the  suit,  and  cannot  have  redress  here."2 

There  is  an  emphatic  distinction  between  no  jurisdiction 
in  the  tribunal  and  a  decree  obtained  by  fraud.  In  the  for- 
mer case  any  person  may  attack  the  decree  in  any  way  he 

1  2  Stock.,  21.  32  Hun.,  551.  85  N.  Y.,  483.    2  Amb.,  763. 


THE  PABTIES.  235 

may  choose ;  but  if  the  court  had  jurisdiction,  no  matter  how 
great  the  fraud  or  error,  an  intermeddler  will  not  be  heard 
in  court. 

When  both  parties  participate  in  the  fraud,  neither  can 
be  heard  to  attack  it  in  any  way.  Suppose  both  parties 
agree  to  a  fraudulent  divorce,  and  afterward  one  desires  to 
annul  it  by  reason  of  the  fraud.  He  will  not  be  heard ;  if  he 
avers  his  own  share  in  the  fraud,  his  bill  will  be  demurrable. 
If  it  be  raised  (and  proved)  by  plea,  his  bill  will  be  dismissed. 
But  when  a  decree  is  to  be  attacked  for  fraud,  it  must  be 
done  in  apt  season,  for  an  unreasonable  delay  after  the  facts 
are  known,  will  be  fatal.1  When  a  case  is  in  fieri,  an  objec- 
tion to  the  jurisdiction  may  be  urged  at  any  time  and  in  any 
way.  A  motion  to  dismiss  for  want  of  jurisdiction  is  al- 
ways in  order.2  A  court  cannot  hold  jurisdiction  without 
having  gained  jurisdiction  of  the  parties  in  some  way  pro- 
vided by  law.3 

It  has  been  held  that  a  verdict  in  a  divorce  proceeding, 
rendered  on  insufficient  or  perjured  evidence,  or  erroneous 
instructions  from  the  court,  is  not  fraudulent. 

A  stranger  to  a  judgment  may  always  show  that  it  was 
obtained  by  fraud.  His  proper  remedy  for  avoiding  it  is  in 
chancery.  It  is  a  subject  of  which  chancery  has  original 
jurisdiction.  No  relief  can  be  had  against  a  void  contract 
when  the  defence  should  have  been  made  at  law,  but  if  the 
judgment  itself  is  void,  that  is  different.4  In  a  case  in 
Iowa,  a  wife  got  a  divorce  in  Iowa,  and  the  husband  in 
New  York  afterward  got  a  divorce  there,  then  tried  to  have 
the  Iowa  decree  annulled.  Refused,  because  he  had  ceased 
by  the  New  York  decree  to  be  her  husband  and  was  ad- 
judged to  be  an  intermeddler.5  Nor  can  the  second  hus- 
band of  a  woman  attack  her  decree  of  divorce  from  her 
first  husband.6  In  Vermont  it  is  held  that  strangers  and 
third  persons,  when  the  judgment  of  a  court  of  record  is 

1 120  111.,  377.  113  Ind.,  131.  60  Wis-  200.    MO  <"!.  B.  Greene,  60.     3  4  Gilm  , 
133.    MO  S.  &  M.,  295.  6  54  Iowa,  153.  a  85  N.  Y.,  483. 


236  MARRIAGE  AND  DIVORCE. 

relied  on  against  them,  may  show  it  to  be  fraudulent  by 
evidence  to  the  jury.1 

I  annex  a  few  authorities  designed  as  a  commentary  on  the 
above  views.  The  same  principles  appear  elsewhere. 

A  judgment  of  divorce  obtained  by  fraud  or  ill- practice 
against  a  spouse  absent  from  the  State  will  be  annulled.  2 
Court  will  set  aside  its  decree  of  divorce,  fraudulently  ob- 
tained, on  a  pretended  service,  and  this  even  though  the 
libellant  has  married  again.  3  If  husband  or  wife  goes  to 
another  State  merely  to  obtain  a  divorce,  not  designing  to 
permanently  reside  there,  such  divorce  will  be  void.  4  If  a 
citizen  remove  to  another  State  to  obtain  a  divorce  on  a 
ground  which  would  not  in  the  former  State  support  a  decree, 
and  then  returns,  the  decree  by  him  so  obtained,  is  of  no 
effect.  5  When  a  resident  of  New  York,  having  a  wife  who 
also  resides  here,  goes  to  another  State  and,  in  a  suit  brought 
there,  obtains  a  decree  of  divorce,  without  any  service  upon 
or  notice  to,  her,  or  any  appearance  by  her,  such  decree  is 
void.  6  When  a  decree  of  divorce  is  annulled,  the  parties 
are  restored  to  their  previous  condition  of  wedlock,  even 
though  one  or  both  have  married  again  and  children  have 
been  born  to  them.  7 

One  who 'would  vacate  a  decree  of  divorce  obtained  by 
fraud^ust  act  promptly.  Many  years'  acquiescence  after  the 
discovery  of  the  fraud,  the  party  obtaining  the  divorce  having 
married  again,  will  bar  relief.  8 

In  Delaware,  Massachusetts  and  Maine  it  is  provided  by 
law,  that,  where  any  of  their  citizens  shall  resort  to  another 
State  to  obtain  a  divorce  for  any  cause  occurring  within  the 
State,  or  for  a  cause  which  would  not  allow  a  decree  by  the 
laws  of  the  State,  a  divorce  so  obtained  shall  be  of  no  force 
or  effect  in  the  State.  9  In  Indiana  it  is  enacted  that  "a  di- 
vorce, decreed  in  any  other  State  by  a  court  having  jurisdic- 
tion thereof,  shall  have  full  effect  in  that  State." 

1  1  2  Vt.,  619.  2  3(?  La.  An.,  808.  3  62  Tex.,  337.  91  Ind.,  27.  *  3  Lea.,  260. 
122  Mass.,  156.  6  10  Mass.,  260.  6  Gray,  157.  6  31  Barbour,  69.  7  23  Kan.,  262. 
46  N.  J.,Bq.  411.  19  Amer.  Deo.,  172.  89iindM27.  9  Rev.  Stat.'of  Del.,  1874. 
Rev.  Stat.  of  Maine,  1883.  Pub.Statutes,  1882,  Mass. 


XXXIII. 

OP  THE  KESIDENCE  BEQUIEED. 


I  elsewhere  show  that  a  party  can  not  acquire  a  genu- 
ine divorce  out  of  the  State  or  Territory  where  he  has  his 
domicil,  but  it  is  a  further  requirement,  that  he  must  have 
had  a  certain  length  or  term  of  residence  in  this  domicil,  to 
entitle  him  to  use  the  court  to  sunder  the  union. 

Both  time  and  intent  must  concur:  i.  e.,  a  party  must 
not  only  have  lived  a  certain  time,  prescribed  by  law,  in  a 
State,  but  must  hold  that  State  as  a  permanent  residence, 
animo  manendi,  to  authorize  a  divorce  that  will  stand. 
Many  government  clerks  in  Washington  city  go  home  to  the 
States  they  came  from,  to  vote ;  they  are  indeed  residents  of 
Washington,  but  their  domicil s  are  in  the  States  they  came 
from,  and,  if  they  wanted  divorces,  they  could  not  be  ob- 
tained in  Washington,  but  in  their  domicil  States.  A  citizen 
of  Missouri  perhaps,  goes  to  California  and  engages  in  busi- 
ness and  remains  over  a  year,  but  with  no  intention  of  re- 
maining there.  He  is  indeed  a  resident  of  California,  and 
for  the  requisite  time,  but  his  forum  for  divorce  objects, 
remains  in  Missouri.  A  citizen  of  New  York  goes  to  Dakota 
on  temporary  business,  as  to  hunt,  lend  money,  speculate  or 
get  a '  'lightning"  divorce,  with  no  intention  to  stay  beyond 
the  time  of  completion  of  his  temporary  business.  He  may 
indeed  stay  there  for  the  ninety  days  prescribed,  but,  his 
domicil  remaining  in  New  York,  he  could  acquire  no  valid  di- 
vorce in  Dakota.  He  must  have  the  following  prescribed 
requisites :  1st.  He  must  have  resided  in  the  State  for 


238  MARRIAGE  AND  DIVORCE. 

the  requisite  time ;  2d.  He  must  have  the  animo  manendi ; 
3d.  His  residence  must  also  be  bonafide. 

Subject  to  the  qualifications,  conditions  and  exceptions 
which  will  be  hereinafter  noted,  the  following  periods  of  res- 
idence are  required  by  statute  before  suit  can  be  brought : 
South  Dakota  and  North  Dakota,  ninety  days. 

Arizona,  California,  Idaho,  Nebraska,  Nevada,  New 
Mexico,  Texas  and  Wyoming,  six  months. 

Alabama,  Arkansas,  Colorado,  Illinois,  Iowa,  Kansas, 
Kentucky,  Michigan,  Minnesota,  Missouri,  Mississippi,  Mon- 
tana, New  Hampshire,  Ohio,  Oregon,  Pennsylvania,  Ehode 
Island,  Utah,  Virginia,  West  Virginia,  Washington,  and  Wis- 
consin, one  year. 

Florida,  Indiana,  Maryland,  North  Carolina,  Tennessee, 
Vermont  and  District  of  Columbia,  two  years ;  Connecticut, 
three  years. 

In  Alabama,  it  is  only  when*  the  defendant  is  a  non- 
resident that  one  year's  residence  of  plaintiff  is  required ;  but  if 
the  ground  of  divorce  is  abandonment,  the  plaintiff  must  have 
been  a  bonafide  resident  for  three  years. 

In  Arkansas,  if  the  cause  arose  out  of  the  State,  the  plain- 
tiff must  have  been  a  resident  of  Arkansas  when  the  cause 
arose  or  existed  "unless  it  was  also  a  cause  for  divorce  in  the 
place  where  it  arose  or  existed." 

In  Colorado :  the  residence  is  required  "unless  the  offence 
or  injury  complained  of,  was  committed  in  the  State,  or 
while  one  or  both  of  the  parties  reside  in  the  State." 

In  Connecticut:  three  years'  residence  required,  unless 
the  cause  for  action  shall  have  arisen  subsequent  to  the  re- 
moval into  the  State,  or  unless  the  defendant  shall  have  con- 
tinuously resided  in  the  State  three  years  next  preceding  the 
date  of  complaint,  and  actual  service  shall  have  been  made 
upon  him,  or  unless  the  alleged  cause  is  habitual  intemper- 
ance or  intolerable  cruelty,  and  the  plaintiff  reside  in  the 
State  at  the  time  of  the  marriage,  and  before  filing  the  com- 


OF  THE  KESIDENCE  BEQUIEED.  239 

plaint,  has  returned  to  the  State,  with  the  intention  of  per- 
manently remaining. 

In  the  District  of  Columbia :  no  time  is  prescribed  when  the 
cause  of  action  occurred  within  the  District. 

In  Illinois :  the  prescribed  residence  is  required,  "unless 
the  offence  or  injury  complained  of  was  committed  in  the 
State,  or  while  one  or  both  of  the  parties  resided  in  the 
State. 

In  Indiana :  the  plaintiff  likewise  must  have  resided  in  the 
county  at  least  six  months  before  filing  the  bill. 

In  Iowa :  no  length  of  time  is  prescribed,  where  the  defend- 
ant is  a  resident  of  the  State  and  served  by  personal  ser- 
vice ;  nor  will  any  divorce  be  granted  when  it  appears  that 
the  plaintiff  has  removed  into  the  State  for  the  purpose  of 
obtaining  the  divorce. 

In  Kentucky :  the  requirement  is  the  same  as  in  Arkansas. 

In  Maine :  no  statutory  residence  is  required  when  the 
parties  were  married  in  the  State  or  cohabited  there  after 
marriage ;  in  all  other  cases,  the  plaintiff  must  have  resided 
in  the  State  when  the  cause  of  divorce  accrued,  or  must  have 
resided  in  the  State  in  good  faith  for  one  year  prior  to  the 
commencement  of  proceedings. 

In  Maryland:  no  residence  is  prescribed,  unless  the  cause 
of  action  accrued  beyond  the  State. 

In  Massachusetts:  five  years'  residence  of  plaintiff  is  re- 
quired, but  if  the  parties  were  residents  of  the  State  at  the  time 
of  marriage,  and  the  plaintiff  had  been  a  resident  for  three 
years  prior  to  the  filing  of  the  bill,  unless  it  appears  that 
the  plaintiff  removed  to  the  State  in  order  to  procure  a  di- 
vorce. "Except  as  above  provided  no  divorce  shall  be  de- 
creed if  the  parties  never  lived  together  in  the  State  as  hus- 
band and  wife,  nor  for  a  cause  occurring  out  of  the  State,  un- 
less before  such  cause  occurred  the  parties  lived  together  in 
the  State  as  husband  and  wife,  and  one  of  them  lived  in  the 
State  where  the  cause  for  divorce  occurred." 

In  Michigan:  if  the  marriage  was  solemnized  in  the  State, 


240  MARRIAGE  AND  DIVORCE. 

it  is  sufficient  if  the  plaintiff  has  resided  in  the  State  from  the 
time  of  marriage  to  the  time  of  the  institution  of  the  suit ; 
and  when  the  cause  accrued  out  of  the  State  the  plaintiff  or 
the  defendant  must  have  resided  in  the  State  for  two  years 
next  preceding  the  commencement  of  the  suit. 

In  Minnesota :  no  time  of  residence  is  prescribed  where 
the  cause  is  for  adultery  committed  while  the  plaintiff  was  a 
resident  of  the  State. 

In  Mississippi:  two  years'  residence  is  required  for  de- 
sertion, and  the  plaintiff  must  also  annex  to  the  bill  an 
affidavit  that  he  has  not  taken  up  residence  in  the  State  in 
order  to  obtain  a  divorce. 

In  Missouri:  the  statute  is  the  same  as  in  Illinois. 

In  Montana :  the  statute  is  the  same  as  in  Illinois. 

In  Nebraska :  in  case  the  marriage  was  solemnized  in  the 
State,  it  is  sufficient  if  the  plaintiff  has  resided  in  the  State 
from  the  time  of  the  marriage  to  the  time  of  the  filing  of  the 
complaint. 

In  Nevada:  the  plaintiff  must  have  resided  six  months  in 
the  county  in  which  suit  is  brought,  unless  suit  be  brought  in 
the  county  in  which  the  cause  therefor  accrued,  or  in  which 
the  defendant  shall  reside,  if  the  latter  be  the  county  in  which 
the  parties  cohabited. 

In  New  Hampshire:  both  parties  must  be  domiciled  in  the 
State  when  action  is  commenced,  or  the  plaintiff  must  be  so 
domiciled,  and  the  defendant  personally  served  with  process 
within  the  State,  or  one  of  the  parties  must  be  so  domiciled 
when  action  is  commenced,  and  the  one  or  the  other  of  them 
must  have  actually  resided  in  the  State  for  one  year  next 
preceding  the  commencement  of  action. 

In  New  Jersey:  jurisdiction  is  had  if  either  of  the  parties 
is  an  inhabitant  of  the  State  at  the  time  of  the  injury,  de 
sertion  or  neglect  complained  of,  or  where  the  marriage  shall 
have  occurred  within  the  State,  and  the  plaintiff  shall  have 
been  an  actual  resident  of  the  State  at  the  time  of  the  injury, 
desertion  or  neglect  complained  of,  and  at  the  time  of  exhib- 


OF  THE  EESIDENCE  REQUIRED.          241 

iting  the  bill,  or,  if  on  the  ground  of  adultery  committed  with- 
in the  State,  where  either  of  the  parties  reside  in  the  State 
at  the  time  of  exhibiting  the  bill,  or,  if  by  reason  of  adultery 
committed  outside  the  State,  where  either  of  the  parties  shall 
have  been  a  resident  of  the  State  for  three  years  next  pre- 
ceding the  time  of  exhibiting  the  bill,  or,  if  on  the  ground  of 
desertion,  when  the  plaintiff  or  the  defendant  shall  be  a  resi- 
dent of  the  State  at  the  time  of  exhibiting  the  bill,  and  either 
party  shall  have  been  a  resident  of  the  State  for  the  term  of 
three  years,  during  which  such  desertion  shall  have  continued. 

In  New  York :  for  full  divorce,  both  plaintiff  and  defendant 
must  have  resided  in  the  State  when  the  offence  was  com- 
mitted, or  must  have  been  married  in  the  State,  or  the  plain- 
tiff must  have  been  a  resident  when  the  offence  was  com- 
mitted, and  also  when  the  action  was  commenced,  or  the 
offence  must  have  been  committed  within  the  State,  and  the 
plaintiff  must  be  a  resident  of  the  State  when  the  action  is 
commenced.  In  action  for  limited  divorce,  both  parties  must 
have  been  residents  when  the  action  is  commenced,  or  must 
have  been  married  in  the  State,  or,  if  married  out  of  the  State, 
they  must  have  become  residents  thereof,  and  continued  to  be 
such  at  least  one  year,  and  the  plaintiff  must  be  a  resident 
when  the  action  is  commenced. 

In  North  Carolina :  the  plaintiff  must  set  forth  that  the 
facts  constituting  the  cause  for  divorce  have  existed  to  his 
or  her  knowledge  for  at  least  six  months  prior  to  filing  of  the 
complaint;  if  the  wife  be  plaintiff,  she  may  state  "that  the 
defendant  is  removing,  or  about  to  remove,  his  property  and 
effects  from  the  State,  whereby  she  may  be  disappointed  in 
her  alimony." 

In  Texas  i\\Q  plaintiff  must  have  resided  in  the  county 
for  six  months  prior  to  filing  of  bill. 

In  Vermont:  "no  divorce  shall  be  allowed  for  any  cause 
if  the  parties  never  lived  together  as  husband  and  wife,  within 
this  State,  nor  for  a  cause  which  accrued  in  another  State  or 
country,  unless  the  parties  before  such  cause  accrued  lived  to- 


242  MARRIAGE  AND  DIVORCE. 

gether  as  husband  and  wife  in  this  State ;  nor  for  a  cause 
which  accrued  in  another  State  or  country,  unless  one  of 
the  parties  then  lived  in  this  State.  In  an  action  on  the 
ground  of  adultery,  intolerable  severity  or  wilful  desertion, 
when  the  cause  of  the  action  accrued  without  the  State, 
the  plaintiff  shall  have  been  an  inhabitant  of  the  State 
for  two  years  next  preceding  the  filing  of  the  complaint, 
and  of  the  county,  where  the  complaint  is  filed,  for  one 
year  next  previous  to  the  term  of  court  where  suit  is 
brought.'' 

In  Virginia  and  West  Virginia  cither  plaintiff  or  defend- 
ant must  have  resided  in  the  State  for  one  year,  etc. 

In  Wisconsin,  when  the  adultery  charged  was  committed 
while  the  plaintiff  was  a  resident  of  the  State,  or  in  case  the 
marriage  was  solemnized  in  the  State,  it  suffices  if  the  plain- 
tiff resided  in  the  State  from  the  date  of  the  marriage  to  the 
time  of  bringing  suit.  When  the  wife  is  plaintiff,  it  is  suf- 
ficient that  the  defendant  had  resided  in  the  State  for  one 
year  prior  to  commencement  of  suit. 

In  Wyoming  it  suffices,  if  the  marriage  was  solemnized 
there,  if  the  plaintiff  has  resided  there  from  the  date  of  the 
marriage  to  the  commencement  of  the  suit. 

In  California,  the  Dakotas,  Idaho,  Kansas,  Nebraska, 
New  York,  Ohio  and  Wyoming,  when  a  married  woman  brings 
suit,  her  domicil  is  held  good,  regardless  of  the  husband's 
domicil. 


XXXIII. 
THE  LAW  OF  PLACE. 

That  which  I  may  term  the  law  of  place,  although  gener- 
ally commented  on  in  connection  with  other  subjects  at 
their  proper  titles,  may  be  still  further  elucidated. 

It  may  bo  considered  under  the  following  sub-titles : 

(1).     Tliejf/.s'  gentium,  the  place  of  the  party's  nativity. 

(2).     The  lex  loci  dornicilii,  the  place  of  the  domicil. 

(3).  The  lex  loci  contractus,  the  place  where  the  con- 
trad  of  marriage  was  celebrated. 

(4).  The  lex  loci  delictus,  the  place  where  the  matrimonial 
offense  was  committed. 

(5).  The  lex  /on,  the  law  of  the  place  whore  the  suit  is 
brought. 

(G).  The  lex  loci  rei  sitae,  the  place  where  the  property 
is  situated. 

In  some  countries  laws  are  prescribed  regulating  their 
citi/ens'  matrimonial  conduct,  as  that  they  shall  not  marry 
any  but  a  subject  of  their  own  land,  or  shall  be  married  in  a 
certain  way,  or  that  a  marriage  between  a  subject  of  that 
country  and  of  any  other  country  shall  be  null  and  void,  or 
that  they  must  have  a  license  from  the  king  before  they  can 
marry.  I  have  cited  at  length  a  case  which  arose  in  the  Su- 
perior court  of  Cook  county,  where  one  Roth,  a  subject  of 
the  king  of  Wurtemberg,  had  married  in  Chicago,  been  di- 
vorced in  Wurtemberg,  and  married  again.  By  the  law  of 
Wurtemberg  a  license  from  the  king  was  required.  Court 
held  that  the  Illinois  marriage  was  good,  despite  the  require- 
ments of  the  native  country,  that  such  law  had  no  extra-ter- 


244  MARKIAGE  AND  DIVOECE. 

ritorial  force  as  to  marriage,  but  that  the  Wurtemberg  di- 
vorce was  pleadable  in  bar  in  Chicago  in  an  action  of  the  first 
wife  to  administer  on  the  husband's  estate,  lying  in  Cook 
county.1  The  principle  there  enunciated  was,  that  the  law  of 
the  place  of  nativity  had  no  extra-territorial  application  in 
any  other  jurisdiction,  and  such  is  believed  to  be  the  inter- 
national law. 

The  law  of  the  person's  domicil  governs  in  cases  of  the 
contractual  ability  of  the  parties  to  marry,  or  of  divorce,  or 
nullity  of  contract ;  and  not  only  does  the  law  itself  govern ; 
but  it  must  likewise  be  enforced  there.  A  citizen  of  New 
York  could  not  get  a  valid  divorce  in  Colorado  or  Dakota,  even 
though  he  should  allege  and  prove  adultery.  That  is  a  suffi- 
cient cause  in  New  York,  but  it  would  be  quite  as  spurious  if 
enforced  out  of  New  York  as  if  decreed  for  a  cause  not  good 
in  New  York.  Nor  would  a  decree  obtained  in  a  place  of 
temporary  sojourn  be  availing  anywhere  else,  or  even  there, 
if  the  fact  was  shown  that  it  was  only  his  temporary,  and  not 
the  permanent,  domicil. 

There  are  many  persons  who  obtain  clerkships  in  Wash- 
ington with  a  view  to  hold  them  as  long  as  they  can,  and 
when  they  are  bereft  of  their  positions,  design  to  return  to 
the  State  of  their  domicil.  They  even  keep  up  their  voting 
privilege  in  the  State  of  their  domicil.  Such  persons  have 
no  right  to  get  a  divorce  in  Washington,  even  though  they 
remain  in  the  public  service  there  for  forty  years.  Of 
course  it  is  competent  for  them  to  discard  the  State  of  their 
domicil,  as  a  further  domicil,  and  assume  Washington ;  and 
from  the  time  such  design  was  formed,  Washington  became 
their  domicil.  It  is  of  course  competent  for  a  citizen  of 
another  State  to  remove  to  Dakota  with  a  view  to  a  per- 
manent residence,  and  in  such  event  they  might  acquire 
a  domicil  for  all  purposes,  divorce  included :  but  to  sim- 
ply go  there  with  the  sole  design  of  obtaining  a  divorce 

1  Both,  104  I1L,  35. 


THE  LAW  OF  PLACE.  245 

does  not  confer  a  right  to  a  divorce  which  will  be  respected 
or  enforced  anywhere  else. 

In  case  of  commercial  travelers,  actors,  lecturers,  min- 
strels, etc.,  who  are  "on  the  road,"  or  at  "night  stands," 
or  "fortnightly  stands,"  for  ten  months  in  the  year,  it  is 
different.  They  may  adopt  any  place  they  may  choose  as 
their  domicil,  and  if  they  abide  faithfully  by  one,  that  will 
be  their  domicil.  I  have  noticed  that  Chicago  is  a  favorite 
domicil  for  this  class.  This  probably  is  because  of  its 
central  position,  and  also  because  the  exigencies  of  their  call- 
ing require  them  to  be  there  more  frequently  than  at  any 
other  place.  Still  they  may  select  any  other  place.  I  note 
a  leading  actress  has  three  several  homes.  Of  course  she 
may  select  either  as  a  domicil,  or  may  change  her  domicil 
at  will. 

But  it  is  only  a  home  from  the  especial  and  particular 
date  of  the  animus  to  make  it  so.  A.  person  cannot  to-day, 
or  any  particular  day,  say :  "  This  is  my  home, "  and  at  once 
file  a  bill  for  divorce ;  from  the  time  the  party  settles  in  a 
place  and  claims  it  as  a  home,  it  commences  to  be  a  home ;  or 
from  the  time  a  traveler,  a  professional  minstrel,  or  a  travel- 
ing actor,  chooses  a  place  as  a  home,  from  that  date  it  com- 
mences, but  the  legal  residence  is  not  complete  till  the  requi- 
site time  has  elapsed :  but  the  merits  of  a  divorce  could  not 
be  challenged  because  the  applicant  claiming  a  residence  and 
domicil  at  the  place  of  obtaining  it,  never  in  fact  resided 
there,  had  no  real  home  there,  even  did  not  vote  or  pay  taxes 
there.  It  would  pass  rather  by 'virtue  of  the  negative  cir- 
cumstances that  the  party  had  no  other  home  and  no  other 
practical  domicil,  than  from  the  absolute  circumstance  of  the 
claim  of  actual  domicil. 

The  exception  to  the  liberty  of  choice  is  in  case  of  a  mar- 
ried woman,  who  must  follow  and  abide  by  the  domicil  of  her 
husband ;  and,  if  she  do  not  do  so,  it  will  be  desertion.  An 
exception  will  be  where  the  husband  creates  a  domicil  in  an 
entirely  unsuitable  place,  as  if  he  should  settle  in  a  place 


246  MAKKIAGE  AND  DIVOKCE. 

where  her  health  would  be  seriously  undermined,  or,  if  she 
was  a  refined  person  of  delicate  rearing,  and  he  should  mi- 
grate to  the  trackless  deserts  of  Canada,  and  live  in  a  hut ; 
or  if  he  attempt  to  house  her  in  a  disreputable  place.  The 
Tule  is  to  be  enforced  reasonably.  The  husband  selects,  de- 
termines the  place  of,  and  constructs  the  home ;  it  is  her 
duty  to  live  there  and  to  keep  it  in  order.  If,  however,  he 
attempts  to  locate  her  in  a  clearly  unsuitable  place,  or  if  he 
performs  acts  in  violation  of  the  marriage  covenant,  she  may 
then  select  her  domicil,  which  may  be  different  from  his,  and 
may  even  be  in  a  different  State,  and  she  may  acquire  such 
different  domicil  even  for  purposes  of  bringing  a  divorce  suit 
against  her  husband.  In  Tennessee  it  was  held  that  where 
neither  party  had  a  domicil,  that  the  lex  loci  contractus  (place 
of  marriage),  controlled  as  to  movable  property,  and  that  the 
lex  loci  rei  sitae  governed  as  to  wife's  movables,  in  connection 
with  her  marital  rights. 

A  very  important  distinction  exists  in  this  connection 
which  should  not,  although  it  sometimes  does,  pass  unheed- 
ed, viz :  that  while  the  lex  loci  contractus  is  to  govern  and 
control  as  to  the  form  and  manner  of  celebration,  the  lex 
domicilii  governs  as  to  the  capacity  of  the  parties  to  contract. 
For  example,  if  Massachusetts  does  not  allow  a  man  to  mar- 
ry his  step-daughter,  and  New  York  does ;  and  a  citizen  of 
Massachusetts  repairs  to  New  York,  and  there  marries  his 
deceased  wife's  daughter  by  a  former  husband,  the  marriage 
will  be  good  in  the  latter  State  and  void  in  the  former.  A 
lady,  whose  domicil  was  in  New  York,  recently  resorted  to 
Dakota  and  there  procured  a  divorce  from  her  husband,  and 
at  once  in  Dakota  married  another  man.  Such  marriage 
might  have  been  good  in  Dakota,  but  would  not  be  good  in 
New  York,  because,  the  divorce  being  a  nullity  in  New  York, 
she  was  not  competent  to  contract  a  second  marriage,  being 
still  the  wife  of  the  first  husband.1  Suppose  that  by  the  law 
of  New  York,  first  cousins  cannot  marry,  and  persons  of  such 

'76  N.  Y.,  78. 


THE  LAW  OF  PLACE.\  247 

consanguinity  resort  to  New  Jersey,  where  no  such  prohibi- 
tion exists,  and  marry.  The  marriage  is  valid  in  New  Jersey 
but  void  in  New  York.  Now  suppose  the  parties  cohabit  to- 
gether as  husband  and  wife  in  New  York,  what  consequences 
follow?  They  are  guilty  of  adultery  merely.  But  suppose 
that  one  of  them  should  remarry  another  party  in  New  York ; 
it  would  be  no  offence  there.  Then  suppose  the  remarried  par- 
ties should  remove  to  New  Jersey  and  reside ;  they  would  not 
be  guilty  of  bigamy,  because  the  offence  did  not  occur  there, 
but  would  be  guilty  of  adultery  if  they  cohabited  with  the 
partner  of  the  second  alliance.  The  rule,  therefore,  is,  that 
so  far  as  the  capacity  of  the  parties  to  contract  is  concerned, 
the  law  of  their  domicil  controls,  but  in  all  other  respects  the 
place  of  the  contract  controls.  If  parties  living  in  Connec- 
ticut, where  a  ceremony  is  required,  resort  to  New  York, 
where  none  is  required,  and  contract  a  common  law  marriage, 
it  will  be  equally  good  and  valid  in  Connecticut  as  in  New 
York. 

A  North  Carolina  case  goes  so  far  as  to  say  that  if  a  per- 
son marries  two  several  wives  in  Turkey,  where  polygamy  is 
allowed,  and  brings  them  back  to  that  State,  the  laws  of 
North  Carolina  will  recognize  the  validity  of  both  marriages. 

The  law  of  the  place  of  the  parties'  actual  domicil  must 
govern  in  all  questions  of  divorce,  without  regard  to  the  law 
of  the  place  where  the  marriage  was  celebrated.1  In  a  suit 
for  divorce,  lex  domicilii  is  to  govern  the  courts  in  their  de- 
cision.2 As  to  the  grounds  for  granting  a  divorce,  the  lex 
fori  (or  place  of  suit)  governs,  and  not  the  law  of  the  place 
where  the  marriage  occurred.3  When  a  resident  of  New 
York,  having  a  wife  who  also  resides  here,  goes  to  another 
State,  and,  in  a  suit  brought  there,  obtains  a  decree  of  divorce 
without  any  service  of  process  upon,  or  notice  to  her,  or  any 
appearance  by  her,  such  decree  is  void.4  A  judgment  for 
alimony,  rendered  in  another  State,  when  the  only  notice  to 
the  defendant  was  by  publication,  and  he  did  not  appear,  and 

VL9  Ala.,  499.      20  Ala.,  629.     «2  Blackf.,  407.    331  Ga.,  223.    28  Ala.,  12.     *31 
Barb.,  69.     17  How.,  Pr.,  18.      15  Phil.,  Pa.,  403. 


,MAKKIAGE  AND  DIVORCE. 

the  record  did  not  show  that  he  was  a  resident  of  that  State> 
held  of  no  force  in  Indiana.1  To  effect  a  change  of  domicil, 
a  new  residence  must  be  acquired  so  permanent  as  to  exclude 
an  existing  intention  to  return  to  the  old  one,  or  to  make  a 
domicil  elsewhere  than  at  the  new  place  of  residence.2  If 
either  a  husband  or  a  wife  goes  into  another  State  for  the  pur- 
pose of  getting  a  divorce,  and  with  no  intention  of  becoming 
a  permanent  resident  there,  a  divorce,  if  obtained,  will  be 
held  in  Tennessee  (and  anywhere  else)  to  be  null  and  void.3 
A  divorce  authorized  by  the  statute  of  another  State,  where 
neither  party  is  domiciled,  is  of  no  effect  in  this  State,  where 
they  have  their  domicil.4  It  is  competent  for  the  wife  to  ac- 
quire a  domicil  different  from  her  husband's ;  and  the  law  on 
the  subject  in  such  case  is  thus  stated : 

"  When  the  injured  party  seeks  a  new  domicil  and  the 
domicils  are,  therefore,  actually  different,  there  is  no  greater 
reason  why  the  husband's  new  domicil  should  prevail  over 
the  wife's,  than  her's  should  prevail  over  his.  *  By 

marriage,  the  wife  has  claims  upon  her  husband's  property 
here,  and  the  law  of  Pennsylvania  has  claims  to  apply  it  to 
her  support  as  one  of  its  married  citizens ;  on  what  principle 
of  right  or  of  comity  shall  the  decree  of  a  distant  tribunal 
here  having  acquired  jurisdiction  from  domicil  or  otherwise 
over  her,  cut  loose  these  claims  and  disable  Pennsylvania 
from  taking  the  property  of  the  husband  within  her  borders, 
to  lift  the  burden  of  support  from  the  public  shoulders ;  or 
from  rendering  to  the  wife  judicially  that  right  which  she  has 
in  her  husband's  property,  and  which  he  neither  carried  away 
with  him  nor  defeated  by  his  removal  ?  To  admit  the  greater 
right  of  the  foreign  decree  is  to  derogate  from  our  own  sov- 
ereignty and  to  withdraw  from  one  of  our  own  citizens  the  pro- 
tection due  to  her.  No  correct  principles  of  interstate  law 
can  demand  this." 

The  place  where  the  marriage  was  celebrated,  governs  as 
to  the  validity  of  the  marriage,  provided  the  parties  have  the 
contractual  capacity  to  marry,  and  it  is  monogamous  and 
according  to  Christian  usage.  I  give  example,  under  head  of 

»  49  Ind.,  386.      52  Mich.,  117.    a  58  Conn.,  268.    3  3  Lea,  260.    52  Mich.,  117. 
13  Phil.,  Pa.,  30.    «  37  O.  S-,  317- 


THE  LAW  OF  PLACE.  249 

^'Marriage,"  which  see.  A  contract  of  marriage  must  occur  at 
a  (and  only  one)  place,  and  at  a  single  moment  of  time ;  it 
cannot  be  in  abeyance  or  delayed,  hence  there  can  be  but  one 
loci  contractus.  On  principle,  although  there  might  be  a  diffi- 
culty in  the  practice,  parties  may  marry  by  mail,  just  as  they 
may  make  any  other  contract  thus;  i.  e.,  a  girl  in  New 
York  may  write  to  a  man  in  Oregon,  thus :  "In  consider- 
ation that  you  will  marry  me  by  means  of  epistolary  corres- 
pondence by  or  before  December  25th,  next,  I  will  marry  you 
at  the  same  time,"  and  the  man  writes :  "I  agree  to  the  pro- 
posal of  your  letter  of  the ,  and  will  marry  you  on  receipt 

of  this  letter."  Now  if  the  girl  received  the  letter,  say,  on 
December  23d,  the  contract  of  marriage  would  be  formed  and 
exist  from  and  after  that  date,  and  the  place  of  contract 
would  be  New  York.  But  suppose  the  laws  of  New  York 
should  have  required  a  ceremonial  marriage,  and  the  laws  of 
Oregon  did  not  ?  Then  the  marriage  would  fail,  for  the  con- 
tract could  not  take  place  till  the  moment  the  female  received 
and  read  the  letter,  and  it  must  necessarily  take  place  where 
she,  whose  act  was  the  final  one  which  gave  effect  to  the  con- 
tract, was.  When  parties  are  married  by  a  ceremonial  mar- 
riage the  contract  is  consummate  when  the  bride  says  "I  will," 
or  nods  assent,  or  does  not  dissent,  and,  if  the  clergyman 
should  fall  dead  in  an  apopletic  fit  before  he  had  pronounced 
them  man  and  wife,  the  parties  would  nevertheless  be  married,, 
except  in  a  few  States,  where  a  ceremonial  marriage  is  made 
indispensable,  in  which  case  the  whole  ceremony  must  be 
gone  through  with ;  and,  although,  as  is  very  common  in  case  of 
a  ceremonial  marriage,  the  sexual  contact,  which  is  the  crown, 
seal,  and  essence  of  marriage,be  not  had  in  the  same  jurisdic- 
tion in  which  the  ceremony  was  performed,  yet  the  locus  of  the 
marriage  was  where  the  formal  ceremony  was  performed  In 
case  of  a  marriage  per  verba  de  presenti,  with  no  ceremony, 
although  there  is  some  difficulty  about  it,  yet  it  probably 
would  be  at  the  time  and  place  when  and  where  the 
actual  consent  of  the  parties  occurred,  and  not  at 


250  MAKBIAGE  AND  DIVORCE. 

the  place  where  the  sexual  contact  was  had;  sup- 
pose for  example,  parties  agree  together  in  New  York  to 
be  husband  and  wife,  and  then  at  once  go  to  New  Jersey, 
where  the  consummation  is  had :  the  locus  of  the  marriage  is  in 
New  York,  and  if  valid  by  that  law  it  is  valid  in  New  Jersey, 
although,  we  will  suppose,  that  by  the  laws  of  New  Jersey  a 
common  law  marriage  is  invalid;  but  suppose  the  parties 
in  New  York  agree  to  a  marriage  per  verba  defuturo  cum  copula, 
and  go  to  New  Jersey  and  there  consummate  it,  I  am  of  the 
opinion  that,  if  in  New  Jersey  a  ceremonial  marriage  is  re- 
quired by  law,no  marriage  took  place  between  the  parties,  for 
these  reasons,  that  the  parties  were  not  married  till  they  had 
undergone  the  sexual  embrace,  which  was  had  in  a  State 
where  it  could  not  be  marriage,  for  in  such  case  the  time  and 
place  of  the  marriage  is  the  specific  moment  the  sexual  em- 
brace is  complete,  and  in  the  case  stated,  it  was  had  in  a 
State  which  allows  of  no  such  mode  of  marriage,  and,  not  be- 
ing valid  there,  is  valid  nowhere. 

The  incident  of  Napoleon's  second  marriage  was  peculiar, 
and  has  already  been  stated.  Intending  to  meet  his  affianced 
at  some  distance  from  Paris,  he  asked  his  law  advisers,  if  a 
prince  begotten  by  him  of  his  affianced,  before  the  ceremonial 
marriage,  would  be  legitimate  ?  They  answered,  yes.  I  should 
have  made  no  such  answer  in  so  important  a  matter,  and  my 
judgment  is  that  they  only  thus  answered,  because  it  would 
have  been  unsafe  to  have  thwarted  the  Emperor's  wish.  For, 
as  I  understand  the  laws  to  be,  a  child  born  in  wedlock  is 
presumed  to  be  legitimate,  but  in  this  case  it  was  positive 
that  the  Emperor  had  access  to  the  princess  before  marriage, 
and  that  the  child,  therefore,  might  have  been  illegitimately 
begotten,  and  if  the  bars  are  once  thrown  down  to  the  assur- 
ance that  this  heir  of  so  immense  an  empire  might  have  been 
illegimately  begotten  at  all,  it  would  have  been  but  one  step 
further  to  have  ventured  the  possibility  that  it  might  have 
been  begotten  by  another.  In  short,  there  should  be  an 
absolute  precision  and  sacredness  about  the  article  of  mar- 


THE  LAW  OF  PLACE.  251 

riage ;  there  should  be  no  risks  and  no  latitude  allowed ;  in  a 
physical  sense,  affianced  parties  should  be  absolute  strangers 
to  each  other,  till  the  knot  is  tied  fast  and  firm. 

The  lex  loci  delictus,  or  place  where  the  act  was  committed, 
as  adultery,  cruelty,  etc.,  affords  a  reason  for  jurisdiction  for 
divorce  in  some  localities,  that  is  to  say,  a  New  York  man 
and  wife  are  traveling,  and  stop  at  a  hotel  in  Chicago,  and, 
while  there,  the  man  commits  adultery;  the  wife  could 
instantly  commence  a  suit  for  divorce ;  even  though  she  re- 
mained at  home,  the  case  would  be  the  same ;  she  could 
enter  a  suit  there  and  get  a  decree :  but  would  such  a  decree 
hold  in  New  York  ?  Evidently  not ;  the  Illinois  court  had 
jurisdiction  on  the  subject  matter,  but  did  not  have  jurisdic- 
tion of  the  parties.  Illinois  had  a  right  to  vindicate  her 
laws,  which  were  violated,  but  had  no  right  to  meddle  with 
marital  status  of  citizens  of  another  State,  and  so,  despite  the 
Illinois  statute,  I  hold  that  it  had  no  extra-territorial  force. 

The  place  where  suit  is  brought  (lex  fori)  governs  as  to 
methods  of  procedure,  limitations  of  action,  and  all  mat- 
ters connected  with  the  enforcement  of  the  remedy ;  and, 
when  it  is  desired  to  rely  upon  some  other  law  to  govern 
as  to  the  merits,  such  law  must  be  averred  and  proved,  oth- 
erwise the  court  will  presume  that  the  law  which  is  to  gov- 
ern both  as  to  form  and  substance,  will  be  that  of  the  forum. 
For  example :  in  one  jurisdiction,  a  jury  trial  must  be  had 
on  issues  of  fact ;  in  another  it  is  optional  with  the  court :  and 
in  still  another,  no  jury  is  allowed.  We  have  all  these 
classes  in  the  United  States :  or,  in  one  locality,  the  parties 
are  competent  witnesses  only  as  to  the  fact  of  the  marriage ; 
in  another,  competent  on  all  matters,  and  in  another,  in- 
competent. The  law,  or  custom,  where  the  court  is  held, 
prevails.  The  lex  loci  rei  sitae  controls  as  to  the  impression 
to  be  made  upon,  and  the  disposal  of,  property.  This  applies 
especially  to  the  enforcement  of  alimony  or  of  dower  in  a  ju- 
risdiction other  than  that  where  it  is  granted.  To  illustrate, 
suppose  that  a  decree  for  alimony  should  be  made  in  Illinois, 


252  MARRIAGE  AND  DIVORCE, 

where  there  is  a  real  estate  exemption  of  only  one  thousand 
dollars  in  value,  which  it  was  sought  to  enforce  in  Kansas, 
where  the  exemption  was  of  forty  acres  and  improvements. 
In  such  case,  although  this  might  be  worth  many  thousands 
of  dollars,  yet  fye  alimony  decree  could  not  be  enforced 
against  it ;  so  as  to  dower.  In  Illinois,  a  wife  divorced  for 
her  fault  loses  her  dower ;  but  if  it  was  attempted  to  enforce 
dower  rights  in  behalf  of  such  a  wife  in  a  State  where  she  did 
not  forfeit  her  dower,  the  law  of  the  latter  State  would  pre- 
vail, and  she  would  recover  her  dower. 

The  incidents  to  a  foreign  divorce  are  also  naturally  to 
be  deduced  from  the  law  of  the  place  where  it  is  to  be  de- 
creed. If  valid  there,  the  divorce  will  have,  and  ought,  in 
general,  to  have  all  the  effects,  in  every  other  country, upon 
personal  property  locally  situated  there,  which  are  properly 
attributable  to  it  in  the  forum  where  it  is  decreed.  In  re- 
spect to  real  or  immovable  property,  the  same  effects  would, 
in  general,  be  attributed  to  such  divorce  as  would  ordinarily 
belong  to  a  divorce  of  the  same  sort  by  the  lex  loci  rei  sitae. 
If  a  dissolution  of  the  marriage  would  then  be  consequent 
upon  such  a  divorce,  and  would  there  extinguish  the  right  of 
dower,  or  of  tenancy  by  the  curtesy,  according  to  such  local 
law  then  the  like  effects  would  be  attributable  to  the  foreign 
divorce,  which  marked  a  like  dissolution  of  the  marriage. l 

1  Conf .  of  Laws,  sec.  230  b. 


XXXIV. 
AN  EXPOSITION 

OF    THE    MISCHIEFS    AND    HAZARDS    OF    A    FRAUDULENT    DIVORCE. 

Persons  of  either  sex,  who  find  themselves  environed  with 
marital  ills,  are  eager  to  rid  themselves  of  them :  which  de- 
sire is  intensified  if  they  have  in  view  a  more  agreeable  and 
promising  alliance.  They  would  not 

*    *    *    "     rather  bear"  the  ills  they  have 
Than  fly  to  others  that  they  know  not  of," 

but  proceed  to  procure  a  formal  decree  of  divorce,  with  the 
utmost  haste ;  and  deceived,  by  the  assurance  of  the  divorce 
"shyster"  with  whom  they  deal,  and  by  the  imposing  decree, 
adorned  with  a  meretricious  seal,  which  pronounces  them 
divorced,  fancy  that  they  are  forever  released  from  the 
crushing  matrimonial  burden  which  has  heretofore  been  too 
grievous  to  be  borne. 

In  no  case  or  situation,  that  I  am  aware  of,  is  there  a 
more  imperative  need  of  sound  and  responsible  legal  advice 
than  about  this  matter  of  divorce.  Every  person's  liberty 
and  reputation  is  involved,  no  matter  how  impecunious  they 
may  be,  and,  when  they  have  property,  that  also  is  at  stake. 
A  person  can  no  more  afford  to  be  reckless  in  this  matter 
than  in  any  other  vital  interest,  and  is  no  more  authorized 
to  solicit  or  act  upon  the  advice  of  a  "shyster"  in  this  mat- 
ter than  any  other  legal  matter  which  might  affect  their  life 
or  fortune.  It  is  strange  that  persons  will  go  to  a  disrepu- 
table "shyster, "  and  obtain  a  fraudulent  and  void  divorce, 
who  would  not  entrust  such  a  person  with  even  a  ten  dollar 
property  law-suit.  I  repeat,  that  the  most  important  litiga- 


254  MARRIAGE  AND  DIVORCE. 

tion  or  resort  to  the  law  that  one  can  have,  is  a  divorce  pro- 
ceeding; and  none  but  the  best  legal  advice  should  be 
sought  or  relied  on,  in  the  premises.  In  all  other  legal 
matters,  persons  rely  upon  the  law  of  their  domicil  to  con- 
serve and  adjust  their  personal  and  property  rights.  They 
execute  their  wills,  make  contracts,  transact  business,  create 
and  execute  trusts,  by  the  law  of  the  place  where  they  pre- 
fer to  reside,  but,  when  they  desire  a  divorce,  they  take  a 
trip  to  Chicago  or  Dakota,  and  return  home  with  the  covet- 
ed document.  This  is  a  solecism  in  human  conduct  wholly 
un explainable  by  any  moral  or  logical  rule.  They  have  been 
known  to  trust  their  dearest  interests  to  a  disreputable 
"shyster, "  whom  they  would  not  trust  to  get  a  favorite  dog 
released  from  a  pound. 

Modern  divorce  methods  have  been  in  vogue  and  on  trial 
now  for  over  forty  years,  and,  for  practical  objects,  the  law 
is  no  wise  in  doubt,  and,  from  the  settled  law,  I  deduce  the 
following  rules : 

(1.)  A  divorce  or  sentence  of  nullity  of  marriage  pro- 
cured in  the  domicil  of  the  parties,  and  valid  there,  is  valid 
everywhere. 

(2.)  A  divorce  or  decree  of  nullity  of  marriage  pro. 
cured  in  another  jurisdiction  than  that  of  the  parties'  domi- 
cil, for  a  cause  which  did  not  arise  or  accrue  in  the  lex  fori, 
is  void  everywhere  else  except  in  the  lex  fori  (place  of  ac- 
tion),and  sometimes  void  there. 

(3.)  A  person's  domicil  is  "the  established,  fixed,  per- 
manent or  ordinary  dwelling-place,  or  place  of  residence,  of 
a  person,  as  distinguished  from  his  temporary  and  transient, 
although  actual  place,of  residence.  It  is  his  legal  residence, 
as  distinguished  from  his  temporary  place  of  abode ;  or  his 
home,  as  distinguished  from  a  place  to  which  business  or 
pleasure  may  temporarily  call  him." 

Consequently,  a  person  who  leaves  the  place  of  his  or 
her  domicil,  and  takes  up  his  or  her  temporary  residence  in 
another  State,  in  order  to,  and  does  in  fact,  procure  a  divorce 


AN  EXPOSITION.  255 

in  the  new  domicil,  and  returns  to  the  old  domicil,  or  to  an- 
other new  domicil,  perpetrates  a  fraud,  and  his  alleged  di- 
vorce, if  brought  to  a  strict  judicial  test,  will,  or  should  be, 
adjudged  void  in  every  State  except  that  of  the  lex  fori. 
These  spurious  divorces  (so  called)  came  into  being  forty 
years  ago,  when,  by  the  law  of  Indiana,  a  divorce  was  au- 
thorized for  "  incompatibility  of  temper  "  between  the  mari- 
tal parties :  and  by  the  accommodating  spirit  of  the  courts, 
actual  residence  was  dispensed  with,  and  an  application  for 
divorce,  was  tantamount  to  a  decree  therefor.  According 
to  the  practice  in  vogue  there,  the  decrees  recited  that  the 
parties  were  present  in  court  when  the  suit  was  heard,  and 
decree  made :  but  courts  of  other  jurisdictions  asserted  a 
right  to  call  such  recitals  in  question,  and  decide  on  proofs 
aliunde  if  the  divorce  court  had,  in  fact,  bonafide  jurisdiction, 
and  when  it  was  found  that  the  parties  had  resorted  to  In- 
diana, merely  for  the  purpose  of  acquiring  a  domicil  for 
divorce  objects,  such  alleged  jurisdiction  was  challenged,  and 
the  alleged  divorce  or  sentence  of  nullity  overthrown.  And 
in  accordance  with  this  settled  practice  of  courts,  I  deduce 
the  following  rule :  Any  court,  in  which  a  decree  of  divorce 
granted  by  another  jurisdiction  is  pleaded,  is  not  bound  by 
the  recital  of  the  jurisdictional  facts,  but  may  receive  proof 
thereof,  and  it  may  be  shown  by  evidence  aliunde  that  the 
domicil  of  the  parties  was  not  in  the  lex  fori,  and  that  the 
decree  pleaded  was  obtained  by  means  of  fraud  or  gross 
abuse  of  the  process  of  the  court,  or  without  bona  fide  juris- 
diction of  the  parties,  or  by  flagrant  departure  from  the 
ordinary  course  of  judicial  procedure ;  and,  in  such  case,  the 
decree  of  divorce  will  be  adjudged  void,  and  the  parties  may 
be  proceeded  against  as  if  no  divorce  (so  called)  had  been 
had.1 

After  the  course  of  practice  under  the  Indiana  divorce  law 
had  sufficiently  disgraced  and  brought  odium  on  the  State, 
the  law  was  repealed ;  and  the  next  jurisdiction  for  flagi- 

1  25  Mich.,  247.  56  Ind.,  263.  25  Minn.,  29.  13  Bush.,  318.  13  Hun.,  414. 
46  Iowa,  437.  19  Kan.,  451.  108  N.  Y.,  628.  76  N.  Y.,  78. 


256  MARRIAGE  AND  DIVORCE. 

tious  divorces  was  Chicago,  not  by  reason  of  the  law  itself 
being  very  favorable,  but  by  reason  of  the  lax  administration 
of  it,  the  practice  being  to  refer  cases  to  a  master  and  report, 
which  was  rarely  unfavorable,  and  whose  report  was  always 
confirmed.  The  judges  abolished  this  practice,  by  reason  of 
the  inherent  abuses,  and  required  a  hearing  in  court,  and  the 
evidence  to  be  preserved  in  the  record :  and  with  those  pre- 
cautions and  the  good  faith  of  the  judges,  bona  fide  divorces 
are  obtained  there  now,  as  in  other  jurisdictions. 

The  most  disgraceful  evasion  and  violation  of  good  faith 
in  the  operations  and  practice  of  divorce  law,  was  the  prac- 
tice which  obtained  in  Utah  for  some  ten  years.  All  that 
was  needful  to  secure  a  decree,  was  to  make  an  affidavit  that 
one  wished  to  become  a  resident  of  Utah,  and  to  secure  two 
other  affidavits  to  the  effect,  that  he  or  she  could  not  get 
along  in  peace  and  harmony  at  home.  And  the  decree  was 
entered  up  in  any  county  in  that  polygamous  State,  and  a 
certified  copy  furnished  the  applicant,  for  which  the  mini- 
mum charge  was  one  hundred  dollars.  With  the  advent  of  a 
Gentile  population,  consequent  on  the  introduction  of  rail- 
ways and  mining  operations,  and  the  decline  of  polygamy ; 
this  divorce  law  grew  in  disfavor,  and  was  repealed.  Several 
convictions  of  bigamy  visited  upon  adventurous  spirits  who, 
shielded  by  the  palladium  of  an  "Utah"  divorce,  ventured 
their  necks  into  the  matrimonial  noose  a  second  time,  accel- 
erated this  movement.  And  a  necessity  for  another  jurisdic- 
tion for  "  lightning  "  divorces  accrued,  and  Dakota,  then  a 
widely  expanded  territory  of  scanty  resources  and  trifling 
and  unremunerative  litigation,  thrust  itself  into  the  breach, 
and  has  of  late  maintained  large  divorce  colonies,  and  has 
achieved  an  unsavory  reputation  and  considerable  wealth  by 
its  facile  morals  and  flagitious  practices  in  the  divorce  line. 

The  decrees  of  these  courts  are  of  the  same  kind  as 
respects  inefficacy,  as  the  "Indiana"  and  "Utah"  decrees,  and 
will  not  stand  the  test  of  moral  propriety  or  judicial  fitness 
anywhere:  and  thus,  whenever  a  test  of  them  is  made. 


AN"  EXPOSITION.  257 

they  will  be  easily  overthrown.  Parties  frequently  marry 
a  second  time,  by  virtue  of  the  shield  of  a  Dakota  de- 
cree; but  it  is  no  shield.  The  parties  may  never  be  indicted 
for  bigamy,  and,  if  not,  they  may  live  their  lives  throughout, 
"unwhipt  of  justice."  So  also  they  might  do  just  the  same, 
without  the  nominal  palladium  of  a  Dakota  divorce.  Big- 
amy is  harmless,  unless  courts  act  on  the  case,  whether  there 
is,  or  is  not  a  * 'Dakota"  divorce.  And  the  reason  why  no 
more  waZ-eifects  are  visible  as  a  result  of  these  divorces  is, 
that  generally  both  parties  desire  the  divorce,  and  no  one  is 
interested  to  enforce  the  criminal  law ;  and,  as  I  state  else- 
where, (1st)  when  both  parties  participated  in  the  frauduent 
divorce,  neither  can  be  heard  to  question  its  validity ;  and 
(2nd)  the  laches  of  the  party  in  applying  to  annul  the  fraud- 
ulent decree  will  be  fatal  in  due  course  of  time ;  hence,  so  few 
of  these  decrees  are  challenged ;  and  (3rd)  as  to  the  parties 
concerned,  these  decrees  are  good,  unless  attacked  directly 
by  appeal,  writ  of  error,  or  bill  of  review,  or  to  annul  for 
fraud ;  and  in  the  latter  case,  as  I  have  said,  the  attacking 
party  must  not  be  complicated  in  the  fraud.  From  the  above 
it  will  appear  that  extraneous  circumstances  alone  save 
parties  from  the  consequences  of  their  delinquency  in  many 
cases :  to  which  may  be  added,  that  the  practice  in  Dakota  is 
probably  favorable  to  preventing  flaws  from  inhering  in  their 
work,  and  save  them  in  other  cases.  Thus,  however  fraudulent 
the  case  may  be,  and  although  the  defendant  may  file  a  plea  to 
the  jurisdiction  under  oath,  and  which  in  no  other  jurisdiction 
would  need  the  personal  presence  of  the  defendant,  yet  does 
in  this  jurisdiction,  by  an  unwarranted  abuse  of  judicial  dis- 
cretion, demand  the  presence  of  the  defendant.  So  long  as 
neither  divorced  party  marries  again,  or  does  not  commit 
adultery,  they  are  safe,  but  if  either  one  attempts  to  marry 
again,  they  are  at  the  mercy  of  the  State's  attorney  or  grand 
jury  of  the  lex  loci  contractus  (of  the  marriage  only),  and  may 
be  indicted  and  imprisoned  for  the  crime  of  bigamy. 

Another  danger  is  apprehensible  from  another  and  an  un- 


258  MAREIAGE  AND  DIVORCE. 

expected  source ;  viz. :  that  the  children  and  heirs-at-law  of  the 
union  which  was  terminated  by  the  fraudulent  "Indiana," 
"Utah,"  or  "Dakota"  divorce,  will,  upon  or  after  the  death  of 
the  parents,  demand  their  rights,  as  heirs-at-law.  In  the  case 
stated,  the  children  are  not  affected  by  the  fraudulent  decree ; 
it  does  not  bind  or  conclude  them,  and  they  are  as  much  heirs 
after  the  decree  as  before ;  at  the  death  of  their  parent  they 
therefore,  can  assert  their  rights  in  his  estate  as  heirs- 
at-law.  Suppose,  however,  the  parent  has  married  again  and 
has  children  of  the  second  marriage  ?  As  fraud  vitiates 
everything,  this  fraudulent  decree  is  a  nullity  as  to  them,  and 
the  second  heirs  would  not  be  allowed  to  defeat  the  rights  of 
the  heirs  of  the  first  marriage ;  but  the  most  extreme  con- 
sequence would  be  to  multiply  heirs  and  allow  all  to  partici- 
pate, as  if  the  first  wife  had  died  instead  of  being  divorced. 
There  are  estates  in  this  country,  today,  in  the  wrong  hands, 
by  reason  of  ignorance  of  this  law. 

There  is  this,  and  this  only,  difference  between  the 
"Utah"  decrees  and  the  "Dakota"  decrees :  the  former  are 
spurious  on  their  face,  and  need  no  extraneous  proof;  the 
latter  may  be  valid  on  their  face  in  some  cases  (as  when  both 
parties  appear)  and  would  need  proof  to  overcome  them. 
The  proof,  however,  would  not  be  difficult  or  abstruse ;  it  would 
simply  be  that  the  party  was  domiciled  in  a  State  other  than 
at  Dakota,  except  for  the  few  months  occupied  in  getting  the 

divorce.     A  Mrs.  D applied  to  me  in   Chicago  to 

collect  a  large  number  of  promissory  notes  made  by  her  hus- 
band for  the  sum  of  $25.00  each ;  they  had  previously  together 
agreed  that  the  wife  should  get  an  "Utah"  divorce  at  the 
husband's  expense,  which  had  been  done,  and  as  part  of  the 
agreement,  the  husband  had  given  her  his  notes  to  an  aggregate 
amount  of  $1,000,  which  he  had  unwisely  declined  to  pay,  and 
had  married  again.  I  filed  a  bill  for  separate  maintenance 
and  exhibited  this  "Utah"  decree  as  part  thereof,  when  he 
woke  up  to  his  danger,  viz. :  the  wronged  wife  was  his  only 
legal  wife,  and  that  he  had  committed  bigamy.  And  there  are 


AN  EXPOSITION.  259 

thousands  of  bigamists  in  our  country  today,  relying  upon 
the  gossamer  thread  of  an  "Utah"  or  a  "Dakota'*  divorce  for 
protection,  but  whose  real  and  only  protection  is  the  mutual 
guilt  of  both  parties,  or  the  lenity  of  the  innocent  one.  But 
children  are  in  esse  who  will  assert  their  genuine  claims  to 
the  estates  of  their  fathers  and  mothers,  in  spite  of  these 
fraudulent  decrees. 

I  may  here  refer  to  the  "Danforth"  case,  which  happened 
in  Illinois;  that  was  a  fraudulent  divorce,  in  which  both 
parties  participated,  and,  by  virtue  of  the  collusion  of  the 
parties,  the  wife  secured  $29,000  in  cash  in  the  firsf  instance 
as  a  result  of  the  collusion,  and,  immediately  thereafter,  had 
the  decree  set  aside  and  took  as  his  widow,  and  swept  away 
the  estate,  worth  several  hundred  thousand  dollars  :  for  under 
the  law  in  Illinois,  when  there  is  no  issue  of  a  marriage,  the 
widow  acquires  all  the  personal  property  and  half  the  realty, 
nor  can  a  husband  deprive  her  of  either  by  a  will.  " 

Another  danger  of  a  peculiar  kind,  menaces  offenders 
against  the  laws  of  marital  propriety :  it  is  the  exposing 
themselves  to  the  status  and  responsibility  of  a  common  law 
marriage,  when  they  do  not  so  intend.  A  common  law  mar- 
riage is  as  valid  and  binding  as  a  ceremonial,  or  a  formal, 
contractual  one,  and  the  wife  and  children  of  such  a  mar- 
riage have  as  secure  status,  both  personally,  and  as  to  pro- 
perty rights,  as  any.  There  are  many  rich,  but  feeble- 
minded, young  men  running  at  large,  and  they  are  liable  to 
become  the  prey  of  designing  adventuresses,  either  by  an  irrev- 
ocable knot,  else  through  the  seductive  wiles  of  a  looser,  but 
still  equally  effectual,  tie.  As  I  write  this,  a  young  South 
American  languishes  in  the  Ludlow  street  jail,  at  the  instance 
of  one  of  these  alleged  wives,  whom  he  attempted  to  abandon. 
The  case  of  Bowman,  24  111.  App.,  p.  165,  illustrates  the  sub- 
ject* Bowman  was  a  shrewd,  married  lawyer  of  St.  Louis, 
who  conceived  a  fondness  for  a  pretty  girl,  one  Ida  Clement, 
and  entered  into  illicit  relations  with,  and  had  two  child- 
ren by  her,  and  then  sent  her  to  Chicago  to  live  till  he  could 


260  MAEIUAGE  AND  DIVOBCE. 

secure  a  divorce  from  his  first  wife.  He  secured  the  divorce, 
but,  instead  of  marrying  this  betrayed  girl,  married  still  an- 
other. This  girl  then  sued  fora  divorce,  claiming  a  com- 
mon law  marriage,  and  on  a  motion  for  temporary  alimony, 
the  court  held  such  marriage  to  be  gootl. 

The  case  of  Mrs.  Gaines  is  equally  in  point.  Some  feeble 
evidence  tending  to  show  a  ceremonial  marriage  was  ad- 
duced, but  the  strong  point  in  the  case  was,  that  she  was 
acknowledged  by  Clark  to  be  his  daughter. 

Cases  are  arising  every  few  days  which  bring  to  the  crit- 
cism  of  public  opinion  these  "Dakota"divorces,for  the  titled  and 
wealthy,  equally  with  the  obscure,  resort  to  that  jurisdiction. 
The  recent  case  of  Chas.  E.  Powers,  of  Boston,  is  in  point.  He 
secured  a  divorce  in  Colorado,  some  years  since,  and  recently 
died,  leaving  a  will  in  which  it  was  stated  that  he  devised  to 
his  dear  friend  and  amanuensis, Fanny  Sprague,  $900  a  year, 
and,  in  certain  contingencies,  $10,000,  and  in  other  contingen- 
cies $12,000  more,  and  to  his  divorced  wife,  in  lieu  of  dower, 
homestead  and  other  rights,  $300  a  year ;  and  it  is  said  that 
the  widow  has  gone  to  Colorado  to  try  to  set  it  aside ;  and  if  she 
does,  it  is  a  question  if  she  will  be  reinstated  in  the  same 
rights  as  if  there  had  been  no  divorce.  My  comments  on 
this  case  as  stated,  are :  (1st)  If  Mrs.  Powers  appeared  in 
the  Colorado  suit,  she  cannot  vacate  the  decree ;  (2nd)  If  a 
long  time  has  elapsed  since  she  knew  of  it,  she  cannot ;  (3d) 
If  she  can  get  a  hearing,  she  can  set  aside  the  decree  easily ; 
(4th)  If  she  does  set  it  aside,  she  will  be  restored  to  the  same 
rights  as  if  she  had  not  been  divorced,  whatever  they  may  be, 
dower,  homestead,  etc. ;  ( 5th )  But  the  bequest  to  Miss 
Sprague  will  stand. 

In  Mme.  De  Stuers'  case,  just  now  on  the  tapis,  and  where 
she,  a  citizen  of  either  New  York  or  Paris,  got  a  "lightning" 
divorce  in  Dakota,  with  custody  of  her  child,  now  in  custody 
of  the  husband  in  Paris,  and  then,  in  Dakota, married  another 
husband,  while  the  husband  got  a  limited  divorce  in  Holland, 
the  country  of  his  domicil,  together  with  custody  of  the  chil- 


AN  EXPOSITION.  261 

dren,  and  an  annulment  of  the  Dakota  divorce,  the  only  in- 
firmity in  the  Dakota  divorce  as  to  him  is  his  appearance, 
and  the  only  infirmity  in  the  Holland  case  as  to  him,  is  want 
of  actual  legal  service  in  Holland  on  his  wife.  Were  it  not 
for  the  first  defect,  the  Dakota  divorce  would  be  of  no  force ; 
and  were  it  not  for  the  second  defect,  the  Holland  divorce 
would  be  good.  But,  on  the  general  outcome,  the  Dakota 
divorce  is  of  no  force  as  far  as  the  recovery  of  the  child  is 
concerned,  and  the  Holland  divorce  is  good  except  as  to  annul- 
ling the  Dakota  divorce ;  it  only  annuls  it  so  far  as  Holland 
is  concerned.  The  Baroness  will  not  get  her  child  in  Paris. 
The  Baron  will  retain  its  custody  both  by  the  general  law  of 
the  domestic  relations,  and  by  the  superadded  force  of  the 
decree  of  a  court  of  his  domicil.  The  Paris  court  will  pay 
no  attention  to  the  Dakota  divorce,  and  the  Baron,  if  he  is  so 
minded,  can  make  the  future  very  unpleasant  for  his  wife. 
The  Baroness  has  not  acted  discreetly ;  she  has  evidently 
been  advised  :  (1st)  that  her  Dakota  divorce  is  valid ;  (2nd) 
that  it  is  especially  valid  in  Dakota ;  (3d)  that  being  valid  gen- 
erally, and  especially  valid  in  Dakota,her  last  marriage  is  valid 
in  Dakota ;  and  (4th)  that  her  last  marriage  being  valid  in 
Dakota  is,  by  international  law,  also  valid  everywhere.  This 
reasoning  is  specious  and  logical  in  form,  but  still  essentially 
bad ;  for  the  general  rule  that  a  marriage  valid  where  cele- 
brated is  valid  everywhere  is  qualified  to  the  extent  that, 
while  the  forms  of  entering  into  the  contract  are  regulated  by 
the  lex  loci  contractus,ihe  essentials  of  the  contract  depend  up- 
on the  lex  domicilii,  so  that,  if  contrary  to  the  law  of  the 
domicil,  it  is  void,1  and  the  subsequent  marriage  of  a  female, 
already  married,  is  void  by  the  law  of  the  Baroness'  domicil, 
which  I  suppose  is  New  York,  Paris  or  Holland,  even  though 
she  have  antecedent  divorce,  which  also,  for  want  of  juris- 
diction over  the  person,  would  be  invalid  in  either  New  York, 
Paris  or  Holland,  or  any  other  State  or  nation.2 

L.  Gas.,  193.     1  K.  &  J.  4.     2  76  N.Y.,  78.   101  N.  Y.,  23. 


262  MARKIAGE  AND  DIVORCE. 

I  make  the  following^suggestions  by  way  of  recapitulation 
of  a  subject  which  might  confuse  the  layman. 

In  all  cases  where  a  statute  declares  that  a  marriage  be- 
tween certain  classes  or  under  certain  prescribed  conditions 
shall  be  void  without  any  judicial  action,  such  marriage 
will  be  void  everywhere  by  virtue  of  the  plain  rule  that  a 
marriage  valid  by  the  law  of  the  place  where  celebrated  is 
valid  everywhere,  and  a  marriage  void  by  the  law  of  the  place 
where  celebrated,  will  be  void  everywhere. 

It  does  not,  however,  obtain  in  practice  that  a  divorce 
which  is  valid  where  obtained  will  be  valid  everywhere,  for  a 
divorce  may  be  valid  where  obtained,  but  void  everywhere 
else,  or  void  in  some  jurisdictions  and  valid  in  others,  as 
has  been  seen  herein.  A  decree  which  is  void  where  rendered, 
will  be  void  everywhere.  A  decree  which  on  its  face  shows 
no  jurisdiction,  is  void  and  a  nullity,  but  one  which  on  its 
face  shows  jurisdiction  is  not  a  nullity,  but  only  voidable, and 
an  interested  party  must  institute  proceedings  within  a  reason- 
able time,  after  the  discovery  of  it,  to  have  it  adjudged  void, 
else  it  will  or  may  mature  into  a  valid  decree,  as  to  the  direct 
parties,  by  efflux  of  time.  Doubtless  the  decree  may  be 
abstractly  bad,  but  the  courts  will  not  lend  their  aid  to  the 
negligent  or  inert. 

Each  party's  negligence  counts  against  him  or  her  alone, 
and  does  not  conclude  any  other  who  may  have  a  right  of  at- 
tack. If  a  wife  was  barred  by  negligence,  from  annulling  a 
voidable  decree,  by  reasonjof  fraud  in  obtaining  it,  the  children 
of  the  marriage  would  not  be  barred  from  asserting  their 
rights  as  heirs,  to  the  exclusion  of  the  alleged  heirs  of  a  sub- 
sequent marriage,  despite  the  fact  that  the  wife  and  mother 
had  herself  lost  the  right  by  negligence. 

Suppose  this  case :  that  a  wealthy  man,  having  children, 
procures  an  unauthorized  divorce  against  his  wife,  and  she 
chooses,  for  any  reason,  not  to  attack  it.  Now  the  divorced 
husband  marries  a  second  time,  and  has  a  second  family  of 
children,  and  thereafter  dies.  The  first  wife  may  have  lost 


AN  EXPOSITION.  263 

her  right  to  annul  the  unauthorized  divorce,  but  the  children 
of  the  first  marriage,  may,  nevertheless,  come  in  as  heirs  and 
claim  their  heritage  as  heirs. 

The  courts  which  deny  the  extra-territorial  force  of  a  de- 
cree obtained  upon  publication  alone,  do  so  upon  the  ground 
that  every  man  should  be  entitled  to  his  day  in  court,  before 
he  can  be  bound.  A  judgment  inrem,  to  bind  property  in  the 
jurisdiction  of  the  former,  is  good  and  equitable,  for  a  property 
owner  should  take  measures  to  protect  his  property  in  all 
jurisdictions  where  he  may  locate  or  leave  it,  but  with  a 
judgment  in  personam  the  man  to  be  bound  should  have  ac- 
tual notice. 

A  movement  is  on  foot  to  increase  the  required  residence 
in  South  Dakota  to  one  year,  instead  of  three  months.  That, 
if  effected,  will  produce  no  change  in  principle.  A  divorce 
obtained  after  one  year's  forced  and  simulated  residence  will 
be  no  more  forcible  or  correct  than  a  ninety  days'  residence. 
It  is  not  the  length  of  time  that  contains  the  vice,  but  the 
illegal  and  fraudulent  intent  and  animus.  Again,  it  some- 
times occurs  that  both  parties  appear  in  the  Dakota  divorce 
suit,  and  get  up  a  sham  defence.  There  is  this  advantage  in 
that  mode  of  procedure,  that  neither  party  can  arraign  the 
decree  elsewhere :  but,  abstractly  considered,  a  case  is  no  more 
clear  of  fraud  when  both  parties  participate  in  it  than  when 
only  one  does.  If  the  parties  are  neither  in  good  faith  per- 
manently domiciled  in  Dakota,  but  simply  have  a  temporary 
residence  there  for  divorce  purposes,  the  decree  is  as  voidable 
in  one  case  as  in  the  other,  but  there  is  this  essential  differ- 
ence in  practice :  Both  parties  have  participated  in  the  fraud, 
hence  neither  can  attack  the  decree,  because  neither  has  clean 
hands  in  the  sense  of  equity  practice ;  but  any  one  interested 
outside  of  the  parties,  in  property  rights,  and  not  connected 
with  the  fraud,  can  attack  it.  The  proper  mode  for  a  defend- 
ant in  a  Dakota  divorce  suit  should  be  to  plead  to  the  juris- 
diction— i.e.,  that  plaintiff  wasnota&ona^cfo  citizen  of  Da- 
kota— and  make  up  an  issue  on  that ;  or,  if  a  decree  is  ren- 


264  MAEKIAGE  AND  DIVORCE. 

dered,  should  file  a  bill  to  impeach  the  Dakota  decree  for 
fraud.  I  have  impleaded  Utah  decrees  in  Illinois  courts  as 
between  the  parties,  and  had  them  set  aside  in  a  collateral 
euit,  as  in  an  action  for  separate  maintenance.  But  this 
was  warranted  because  the  Utah  decree  on  its  face  showed 
no  jurisdiction  of  either  party,  hence  was  a  nullity.  But  the 
Dakota  decrees  cannot  be  collaterally  impeached  by  the  par- 
ties, because  they  show  proper  jurisdiction  on  their  face. 

A  callow  notion  obtains  in  some  quarters,  that  if  both 
parties  appear  in  Dakota,  and  have  a  mock  or  real  contest, 
that  insures  a  valid  decree.  Such  is  not  the  fact.  Consent 
cannot  confer  jurisdiction,  and  a  Dakota  decree  may  be  void 
for  want  of  jurisdiction,  even  over  the  plaintiff,  for  lack  of 
domicil,  and  may,  in  addition,  be  void  for  want  of  notice  to, 
or  appearance  by,  the  defendant.  In  other  words,  it  may  be 
void  for  want  of  jurisdiction  over  either  party,  or  it  may  be 
void  for  want  of  judicial  notice  to  defendant,  or  it  may  be 
doubly  void  for  want  of  both  requisites. 

Lay  persons  attach  great  consequences  to  a  certified  copy 
of  a  decree  of  divorce,  or  to  an  official  certificate  of  a  mar- 
riage, as  the  case  may  be.  The  needed  solicitude  does  not 
inhere  in  either  the  existence  or  magnificence  of  either  of 
these  documents.  A  female  may  have  a  good  marriage  cer- 
tificate, but  if  her  alleged  husband  had  another  wife  living 
from  whom  he  was  not  validly  divorced,  the  formal  marriage 
certificate  is  null.  The  real  wife,  with  or  without  a  certifi- 
cate, is  the  only  wife,  and  the  owner  of  the  certificate  is  no 
wife  at  all.  The  certificate  has  no  inherent  force  or  strength. 
It  is  the  fact  behind  it,  that  is  all.  So  it  is  with  a  de- 
cree of  divorce.  A  suitor  who  perpetrates  a  judicial  fraud 
on  a  court  finds  himself  very  weak  when  a  test  comes.  Sev- 
eral persons  served  terms  in  the  penitentiary,  although  pro- 
tected by  decrees  of  divorce  of  other  States. 

A  wife  who  learns  that  her  faithless  husband  has  cast  her 
off  by  authority  of  a  Dakota  or  Colorado  divorce,  feels  that 
the  whole  world  has  deserted  her.  She  is  in  error  if  she 


AN  EXPOSITION.  265 

knows  her  rights :  for  she  is  now  in  position  to  take  the  offen- 
sive decidedly,  which,  if  she  does,  her  husband  will  wish  he 
had  never  heard  of  Dakota,  or  Colorado,  or  easy  divorces. 

Suppose,  however,  a  husband  should  attempt  to  disin- 
herit his  true  wife  and  legitimate  children  by  will,  to  the  ad- 
vantage of  a  fraudulent  wife  and  spurious  children  ?  First, 
he  could  not  deprive  his  true  wife  of  dower,  and,  second,  it 
would  be  easy  to  break  a  will  which  should  disinherit  his  gen- 
uine children  for  those  which  were  legally  illegitimate.  Un- 
due influence  would  obtain  a  strong  hold  in  such  a  case.  In 
Illinois,  in  some  contingencies,  the  true  wife  could  get  one- 
half  his  real  estate  and  all  his  personalty,  despite  a  will,  and 
doubtless  in  other  States  similar  advantage  would  accrue  to 
her.  But,  as  I  have  intimated,  the  only  security  hitherto 
to  the  person  or  property  of  the  participants  in  fraudulent 
divorces,  has  been  the  lack  of  knowledge  of  the  outraged  and 
defrauded  spouse,  or  her  or  his  disinclination  to  demand 
justice.  Unlike  complex  land  titles,  which  demand  litiga- 
tion too  stupendous  to  be  dared  by  ordinary  persons,  this  in- 
volves the  utmost  simplicity  of  scope  and  detail.  And  there 
are  today,  fortunes  which  would  speedily  change  hands  if 
subjected  to  the  criticism  of  a  court  of  equity ;  and  all  de- 
pending upon  the  clear  proof  that  A.  B.  made  a  trip  to,  and 
had  a  summer  residence  in,  Dakota,  and  while  there  got  a 
divorce.  That  is  all. 

It  may  seem  strange  to  the  novice  in  such  matters  that 
laws  should  provide  a  method  of  service  by  publication,  and 
that  courts  should  disregard  a  decree  obtained  in  a  suit,  where 
such  requirements  had  been  complied  with.  The  probabilities 
are  that  no  divorce  should  be  granted  except  actual  legal 
notice  is  had  of  such  proceedings  by  the  adverse  party,  but 
in  case  of  desertion  and  flight,  and  frequently  concealment 
and  disappearance,  no  actual  notice  is  possible :  hence  notice 
by  publication  must  suffice,  if  a  divorce  is  just  and  proper, 
for  in  those  cases,  no  actual  notice  can  be  given.  The  court 
granting  the  divorce  makes  a  decree  on  publication  which  is 


266  MARKIAGE  AND  DIVOKCE. 

satisfactory  to  its  practice,  and  to  the  policy  of  the  State  in 
which  the  decree  is  granted.  In  theory,  the  divorce  is  of 
its  own  people,  and  is  consequently  no  business  to,  or  concern 
of,  any  other  State.  If  the  notice  is  given  according  to  the 
law  of  the /State  where  the  decree  is  rendered,  and  no  fraud 
exists,  the  decree  is  valid  and  binding  by  the  law  and  practice 
of  that  State.  So  far  all  is  well,  but  the  difficulty  and  con- 
fusion is  introduced  when  an  attempt  is  made  to  give  to  that 
decree,  force  and  effect  in  another  State.  Suppose  a  wife  liv- 
ing in  New  York  resorts  to  Dakota,  and  gets  a  decree  against 
her  husband,  who  remains  in  New  York,  upon  a  newspaper 
notice,  and  with  it  a  decree  for  alimony,  which  she  attempts 
to  enforce  in  New  York.  The  courts  of  New  York  justly  say: 
"  It  is  illogical  and  contrary  to  all  analogy  with  other  judicial 
proceedings  to  enforce  a  judgment  in  a  suit  when  the  alleged 
judgment  debtor  never  had  his  day  in  court."  Similar  moral 
considerations  apply  to  a  case  where  a  man,  living  and  domi- 
ciled in  Massachusetts,  repairs  to  Colorado  and,  upon  pub- 
lication, secures  a  divorce  against  his  wife,  who  has  no 
actual  notice  of  it,  The  Massachusetts  courts  say,  justly, 
that  she  must  have  her  actual  day  in  court,  and  that  nothing 
short  of  apt  and  legal  notice  will  answer  in  lieu  thereof.  It 
even  goes  further  and  pronounces  such  a  decree  to  be  void. 
To  illustrate  by  proceedings  of  attachment :  A  creditor  may 
enforce  a  judgment  against  his  non-resident  debtor  by  a  pub- 
lication notice,  so  far  as  property  lying  in  the  vicinage  of  the 
notice  is  concerned,  it  being  a  judgment  in  rem,  but  such 
judgment  has  no  extra-territorial  force ;  if  a  judgment  which 
will  affect  the  person,  be  desired,  then  actual  notice  to  the 
person,  in  legal  and  formal  manner,  must  be  given.  The 
divorce  decree  on  newspaper  publication  will  be  valid  in  the 
State  where  the  decree  is  rendered,  but  may  not  be 
valid  anywhere  else.  The  current  of  decision  is  not 
conclusively  and  absolutely  so,  but  is  setting  that  way. 
Wherefore  I  suggest  that  a  divorce  obtained  in  a  State  where 
the  plaintiff's  domicil  is  not,  and  upon  a  newspaper  publica- 


AN  EXPOSITION.  267 

tion,  is  doubly  objectionable  and  hazardous,  and,  in  point  of 
fact,  may  be  of  no  validity  except  in  the  State  where  rendered, 
if  brought  to  a  test. 

When  the  consequences,  social,  industrial  and  economical, 
attendant  upon  the  marital  state  are  considered,  it  will  be 
made  apparent  that  it  is  illogical  and  a  solecism  in  juris- 
prudence if  such  vast  changes  as  are  averred,  can  be  wrought 
by  a  party  procuring  a  fraudulent  divorce  in  a  foreign  juris- 
diction. In  Illinois,  for  example,  as  I  have  shown,  if  there 
are  no  children  of  a  union,  at  the  death  of  the  husband,  the 
wife  becomes  the  absolute  owner  of  all  the  personal  property 
and  one- half  the  real  estate  of  which  the  husband  should  die 
seized ;  nor  could  he  deprive  her  of  it  by  will.  Is  it  presum- 
able that  a  man  thus  circumstanced  could  resort  to  Dakota 
on  a  visit  to  Yellowstone  Park,  or  to  shoot  quail,  and  while 
there  get  a  divorce,  and  by  that  means  disinherit  his  wife  ?  Is 
it  to  be  expected  that  the  State  of  Illinois  would  permit  its  do- 
mestic policy  to  be  set  at  naught  by  a  Dakota  judge  ?  Or  that 
a  man,  acting  under  the  protection  of  such  a  decree,  should 
desert  his  lawful  wife  and  attempt  to  marry  another,  leaving 
the  real  wife  to  suffer  ?  A  State  would  be  recreant  to  its 
highest  duty  of  citizenship  which  would  tolerate  such  an  out- 
rage. Courts  are  zealous  to  vindicate  the  rights  of  their  own 
citizens  against  forays  upon  their  rights  by  courts  of  these 
.new  States,  which  may  seek  to  turn  an  honest  penny  by  the 
frame  in,  and  sale  of,  unjust  and  impertinent  decrees  of  di- 
vorce. The  usual  course  is,  in  regard  to  persons  who  are 
without  property,  to  let  the  adventuring  spouse  indulge  in  a 
divorce,  inasmuch  as  it  releases  one  as  much  as  the  other, 
and  both  form  new  connections,  but,  when  considerable 
amount  of  property  depends  upon  the  validity  or  invalidity  of 
of  such  divorces,  they  will  be  collapsed  with  the  same  ease 
and  certainty  that  a  soap  bubble  can  be. 

People  of  the  highest  order  of  character  and  respect- 
ability will  violate  positive  marital  laws,  who  would  not  violate 
a  property  law  or  any  other  social  law,  on  any  account.  And 


268  MARRIAGE  AND  DIVORCE. 

persons  who  are  organically  and  constitutionally  timid,  will 
incur  great  risks  about  matrimonial  matters,  which  they 
would  not  do,  on  any  account,  about  any  other  matter.  I 
have  had  instances  where  I  have  advised  persons  that  if  they 
pursued  the  line  of  policy  desired  by  them,  it  would  be  tech- 
nical bigamy  by  the  husband,  and  technical  adultery  by  the 
wife.  Yet  they  would,  with  my  advice  echoing  in  their  ears, 
deliberately  pursue  their  policy,  fully  conscious  of  the  conse- 
sequences.  It  so  happens,  however,  that  it  is  only  occasion- 
ally and  very  rarely  that  such  crimes  are  punished,  not 
known  to  their  acquaintances  at  large,  and  not  suggestive  of 
any  specific  turpitude,  even  where  known.  In,  perhaps, 
ninety-nine  cases  out  of  a  hundred,  the  offenders  against 
these  marital  laws  are  not  disturbed,  and  in  the  one  hun- 
dredth case,  where  prosecution  does  ensue,  it  is  at  the 
behest  of  the  non-consenting  and  irate  spouse,  who  is  sinned 
against.  Where  both  parties  concur  in  the  delinquency,  it 
is  not  probable  that  any  outside  party  will  prosecute  the 
matter. 

Sometimes  a  person,  whose  domestic  relations  are  not 
harmonious,  will  contract  a  second  alliance,  contingent  upon 
the  severance  of  the  tie  that  binds,  and  will  resort  to  Chicago, 
Colorado  or  Dakota,  in  order  to  get  rid  of  the  existing  matri- 
monial burden.  And  a  recent  practice  is,  to  celebrate  the 
new  marriage  in  Dakota,  at  the  scene  and  forum  of  the  di- 
vorce. Such  was  the  policy  of  the  Baroness  de  Stuers,  who 
married  her  second  affianced,  on  the  day  succeeding  the 
granting  of  the  decree,  and  such,  I  am  advised,  is  a  common 
custom  of  sagacious  persons.  The  advantage  of  this  course 
is,  that  they  escape  the  consequences  of  the  commission  of 
bigamy :  for  a  divorce  granted  by  a  Dakota  court  will,  as  a 
general  rule,  be  sustained  against  any  subsequent  attack  for 
fraud,  want  of  jurisdiction,  etc.,  and,  consequently,  the  di- 
vorce being  valid  in  Dakota,  the  subsequent  marriage  will 
also  be  valid  there :  hence  the  parties,  even  though  they 
should  return  at  once  thereafter  to  the  State  of  their  domicil, 


AN  EXPOSITION.  269 

could  not  be  indicted  for  bigamy  there,  because  the  marriage 
did  not  take  place  there :  but  they  could  be  punished  for  the 
lesser  offense  of  adultery,  if,  and  provided,  they  cohabited 
together,  there. 

Whatever  the  moral  delinquency  may  be,  it  certainly 
would  seem  prudent  that  persons  who  secure  divorces  in  a 
State  other  than  that  of  their  domicil,  and  who  marry  sub- 
sequently, should  guard  against  a  criminal  prosecution  for 
bigamy,  which  can  be  done  practically  by  the  exercise  of 
proper  discretion  as  to  the  locus  in  quo  of  the  second  marriage  : 
for  the  crime  of  bigamy  is  only  cognizable  by  the  law  of  the 
place  where  the  same  is  celebrated,  the  law  being  thus  set 
forth :  "  The  common  law  considers  crimes  as  altogether 
local,  and  cognizable  and  punishable  exclusively  in  the  coun- 
try where  they  are  committed.  No  other  nation,  therefore, 
has  any  right  to  punish  them."1  Lord  Loughborough  thus 
expressed  it:  "Penal  laws  of  foreign  countries  are  strictly 
local,  and  affect  nothing  more  than  they  can  reach,  and  can 
be  seized  by  virtue  of  their  authority."2  Mr.  Justice  Buller 
stated  the  principle  thus :  "  It  is  a  general  principle  that 
the  penal  laws  of  one  country  cannot  be  taken  notice  of  in 
another."3  Finally  Lord  Brougham  said :  "  The  lex  loci 
must  needs  govern  all  criminal  jurisdiction,  from  the  nature 
of  the  thing,  and  the  purpose  of  the  jurisdiction. "4  And 
Chief  Justice  Marshall  said:  " The  courts  of  no  State  exe- 
cute the  penal  laws  of  another."5  In  New  York,  bigamy  is 
not  punishable  as  an  offense,  when  the  second  marriage  took 
place  out  of  that  State,  though  the  husband  brought  his 
wife  to  New  York,  and  lived  there.6  If  they  cohabit  together 
in  New  York,  they  are  guilty  of  adultery,  which  is  only  a 
misdemeanor,  and  court  say,  to  attempt  to  subject  persons 
to  trial  and  punishment  within  this  State,  for  acts  done  with- 
out the  territorial  limits  of  the  State,  would  be  fruitless,  and 
the  legislative  design  to  accomplish  the  purpose  would  be 
simply  void.7  Also  held  in  same  State  that  a  person  commit- 

1  Story's  Conf.  Laws,  516.    2  1  H.   Black.,  135.    3  3  T.  B.,  733.    *  9  Bligh.,  120. 
5  10  Wheat,,  123.    6  2  Park  Or.  Gas.,  195.    7  4  Thomp.,  etc.,  77. 


270  MAERIAGE  AND  DIVOECE. 

ting  a  bigamous  marriage  in  New  York  could  not  be  indicted 
in  any  but  the  specific  county  where  the  same  was  celebrated. 
Same  in  Alabama;1  same  also  in  Missouri;2  same,  doubtless, 
everywhere. 

If  the  second  marriage  in  such  case  takes  place  beyond 
limits  of  North  Carolina,  cannot  be  punished  for  bigamy  in 
North  Carolina.3  Now  if  persons  are  willing  to  take  the 
risk  of  a  spurious  divorce,  they  should  not  be  so  reckless  as 
to  expose  themselves  to  the  danger  of  a  prosecution  for  a  felony, 
when  it  could  be  so  easily  guarded  against.  Suppose,  there- 
fore, a  New  York  wife  should  visit  Dakota  and  secure  a  di- 
vorce, with  the  design  to  return  to  New  York,  and  remarry 
there.  If  she  married  in  New  York,  she  could  be  proceeded 
against  for  bigamy,  but  if  she  married  in  Dakota,  she  could 
not  be.  If  the  divorce  was  valid  in  Dakota,  the  marriage 
would  be  valid  there  also,  and  she  would  not  be  in  danger  of 
prosecution  anywhere  for  bigamy,  albeit  the  marriage  would 
be  invalid  in  New  York ;  or,  suppose  she  took  a  trip  to  Canada 
and  got  married ;  it  would  be  bigamy  in  Canada,  but  she 
could  not  be  extradited  there,  and,  if  she  kept  aloof  from 
Canada,  she  would  not  be  liable.  So  she  might  be  married 
with  practicable  impunity  in  England  or  anywhere  on  the 
continent,  or  on  shipboard :  but  it  would  not  be  needful  to 
make  a  public  ceremony  of  it ;  such  a  marriage  should  be 
done  in  the  least  ostentatious  manner  possible,  and  the 
locality  should  be  selected,  the  least  likely  to  produce  trouble. 
But  in  Tennessee  there  was  a  statute  providing  that  a  mar- 
ried person  who  should  either  marry  a  second  time,  or  con- 
tinue to  cohabit  with  such  second  husband  or  wife,  should  be 
punished,  etc. — held,  that  the  cohabitation  was  not  biga- 
mous, but  was  a  statutory  offense  which  could  be  punished : 
and  it  is  quite  possible  that  .similar  statutes  exist  in  some 
other  States,  which  should  be  seen  to. 

In  Vermont  the  statute  made  it  polygamy  to  cohabit  with 
a  second  wife  while  the  former  one  was  living,  although  the 

1  44  Ala.,  24.    2  75  Mo.,  571.    3  83  N.  C.,  615. 


AN  EXPOSITION.  271 

marriage  took  place  elsewhere.1  By  virtue  of  the  inhar- 
mony  in  the  law  and  practice  of  divorce  in  the  several 
States,  the  anomaly  may  be  presented  of  a  female  being  the 
lawful  wife  of  one  man  in  Dakota  or  Colorado,  and  the  lawful 
wife  of  another  man  in  New  York,  and  that  it  might  be 
adultery  in  one  State  to  cohabit  with  her  husband,  and  adul- 
tery in  the  other  State  to  cohabit  with  the  second  husband, 
and  a  husband  might  have  a  plurality  of  wives,  or  a  wife  a 
plurality  of  husbands.  That  such  an  unwholesome  and 
chaotic  marital  condition  is  possible,  is  a  disgrace  to  our 
jurisprudence,  as  well  as  deleterious  to  the  morals  of  the 
rising  generation. 

It  has  been  held  that,  where  A  marries  B,  and,  after- 
ward, during  B's  life,  marries  C,  and,  at  a  still  later  time, 
whenB  is  divorced,  but,  during  C's  life,  marries  D,  the  last 
marriage  is  not  bigamous,  because  the  second  was  void. 
34  Ark.,  511. 

In  Ohio,  it  was  held  that  a  marriage  contracted  by  par- 
ties, either  of  whom  is  under  the  age  of  consent,  and  not 
confirmed  by  cohabitation  after  arriving  at  that  age, will  not 
subject  a  party  to  punishment  for  bigamy  for  contracting  a 
subsequent  marriage,  while  the  first  husband  or  wife  is  still 
living.  2 

In  Michigan,  it  was  held,  that,  although  the  second  mar- 
riage was  between  a  white  and  a  negro,  which  is  void  by 
statute,  yet,  that  it  was  bigamous.  3 

In  Alabama,  it  was  held  that,  if  the  first  marriage  is  void, 
bigamy  can  not  be  averred  of  the  second  marriage :  otherwise 
if  it  be  voidable.  4 

It  was  held  in  New  York,  that  a  divorced  person  who  is 
prevented  by  terms  of  the  decree  from  marrying  again,  and 
does  marry  again  in  New  York,  is  guilty  of  bigamy.3  But,  as 
has  been  seen  elsewhere,  he  may  marry  in  another  State,  in 
violation  of  the  terms  of  the  New  York  decree,  and  return  to 
New  York,  and  he  will  be  unharmed. 

1  18  Vt,.  570.    2  20  Ohio   1.    3  34  Mich.,  339.    *  55  Ala.,  108.    592  N.  Y.,  146. 


XXXV. 
PEACTICE  AND  PKECEDENTS. 

The  first  step  in  a  proceeding  to  obtain  either  a  decree  of 
divorce  or  nullity  is  to  prepare  and  file  in  the  proper  court  a 
bill,  petition  or  libel,  as  it  is  indifferently  termed  in  the  prac- 
tice, in  different  States.  This  document  is  an  historical  state- 
ment of  the  complainant's  case,  concluding  with  the  demand 
for  the  relief  desired.  If  the  defendant  is  a  resident  of  the 
State,  a  summons  must  be  served  upon  him  at  least  ten  days, 
and,  in  some  States,  twenty  days,  before  the  term  begins.  If 
he  is  a  non-resident,  then  a  publication  must  be  made  in 
some  newspaper  of  general  circulation, published  in  the  coun- 
ty, or,  in  the  nearest  county,  if  there  be  none  there,  accord- 
ing to  a  prescribed  form,  giving  full  notice  of  the  pendency 
of  the  suit,  and  informing  him  that  a  decree  will  be  rendered 
against  him,  unless  he  appears  and  makes  a  defence.  In 
some  States,  a  copy  of  this  notice  must  be  mailed  to  the  de- 
fendant's last  known  place  of  residence,  or  to  his  then  present 
residence,  if  known ;  and,  when  such  requirement  is  not  ful- 
filled, the  decree  obtained  in  such  cases,  is  void.  x  If  an 
answer  is  not  made  at  the  time  required  and  designated,  a 
default  is  entered,  and  the  cause  then  stands  for  hearing  on 
the  regular  default  divorce  docket.  But  no  decree  will  be 
entered  unless  affirmative  proof  is  made,  satisfactory  to  the 
court,  of  the  substance  of  the  charges  in  the  bill.  In  some 
States,  as  Indiana,  Kentucky,  Louisiana,  Vermont  and  Wash- 
ington, the  county  prosecuting  attorney  must  appear  for  the 
defence  in  cases  where  it  is  otherwise  unrepresented,  and  ex- 

1  30  111.  App.,  159. 


PKACTICE  AND  PBECEDENT.  273 

amine  the  witnesses,  and  see  that  the  cause  is  sustained  and 
the  decree  authorized.  In  such  cases,  the  decree  is  entered, 
if  justified,  and,  in  Chicago,  but  not  generally,  the  evidence  is 
written  out  and  preserved  with  the  record. 

Service  is  had,  as  a  rule,  as  in  other  chancery  suits,  and 
when  personal  service  can  not  be  had,  constructive  notice 
may  usually  be  given  by  publication ;  in  some  cases,  publi- 
cation is  made  as  matter  of  course,  and,  in  others,  leave 
must  be  had.  In  Connecticut,  if  the  defendant  is  not  in  the 
State,  any  judge  or  clerk  of  the  Supreme  court,  or  of  the 
Superior  court,  or  any  county  commissioner,  may,  in  vacation, 
order  such  notice  as  he  may  deem  reasonable ;  and  the  court 
may  order  further  notice  and  continue  the  case  till  it  has 
been  given.  In  the  Dakotas,  the  court  may  grant  an  order 
of  publication. 

In  Delaware,  if  service  is  not  to  be  had,  an  alias  shall  is- 
sue to  next  term,  and  publication  be  had.  In  the  District  of 
Columbia,  if  the  affidavit  of  a  disinterested  witness  be  filed, 
that  the  defendant  is  a  non-resident,  or  has  been  absent  for  six 
months,  the  court  may  order  publication  to  be  made.  In 
Florida,  if  the  defendant  is  absent  from  the  State,  or  does 
not  appear  in  the  case,  the  court  may  order  a  hearing  on 
the  bill,  and  shall  publish  the  order  for  three  months,  or, 
shall  cause  a  copy  of  the  bill  and  order  to  be  served  for  at 
least  three  months  before  the  actual  hearing.  In  Illinois, 
publication  may  be  had  in  cases  of  non-residents,  and  a  copy 
of  the  notice  must  be  mailed  to  the  post  office  address  of  the 
defendant.  In  no  case  shall  the  court  grant  a  divorce  by 
default,  unless  the  judge  is  satisfied  that  all  proper  means 
have  been  taken  to  notify  the  defendant  of  the  pendency  of 
the  suit.  *  *  *  Whenever  the  judge  is  satisfied  that 
the  interests  of  the  defendant  require  it,  he  may  order  such 
additional  notice  as  equity  may  seem  to  require.  In  Indiana, 
on  the  affidavit  of  a  disinterested  person,  publication  may  be 
had,  and  a  marked  copy  of  the  paper  mailed  to  the  defendant's 
post  office  address.  In  Kansas,  when  publication  is  had,  a 


274  MAKKIAGE  AND  DIVORCE. 

copy  of  the  petition  must  be  mailed  to  the  defendant,  if  his 
address  is  known.  In  Louisiana,  "when  the  defendant  is  ab- 
sent, or  incapable,  for  any  cause,  of  acting,  an  attorney  shall 
be  appointed  to  represent  him,  against  whom, contradictorily, 
the  suit  shall  be  prosecuted."  In  New  Hampshire,  such 
notice  shall  be  given  as  the  court  may  order.  In  Khode 
Island,  when  publication  is  had,  a  citation  and  copy  of  the 
bill  must  be  mailed  to  the  place  where  the  defendant  was  last 
heard  from. 

The  methods  of  service  do  not  differ  much  in  the  various 
States.  Personal  service  is  far  more  effectual  to  secure  a 
decree  that  will  hold,  than  service  by  publication.  In 
Illinois,  when  a  decree  is  obtained  by  constructive  service  (by 
publication),  the  defendant  may  come  in  at  any  time  prior  to 
the  succeeding  term  of  court,  and  file  his  answer,  and  have  a 
hearing ;  and  in  any  State,  it  will  require  but  a  slight  showing 
to  vacate  and  annul  a  decree  obtained  upon  such  notice. 
But  in  all  States  and  Territories,  publication  may  be  resorted 
to  in  a  case  of  absent  defendants,  and  a  decree  obtained  with- 
out their  presence. 

I  here  annex  a  notice  from  an  English  case ;   it  is    very 
similar  to  the  notices  by  publication  in  our  practice : 

IN   THE    HIGH   COUBT    OF  JUSTICE. 

PBOBATE  DIVOBCE  AND  ADMIRALTY  DIVISION. 
(DIVOECE.) 

To  William  Henry  Jackson,  late  of  New  York,  in  the 
United  States  of  America. — Take  notice  that  a  Citation  bear- 
ing date  the  2dday  of  November,  1892,  has  issued  at  the  in- 
stance of  Maria  Cheadle  Jackson,  of  Bloomfield  House,  Hanley, 
in  the  county  of  Stafford,  citing  you  to  appear  within  30  days 
after  service  by  publication  hereof,  and  to  answer  the  petition 
filed  by  the  said  Maria  Cheadle  Jackson,  praying  for  a  dis- 
solution of  marriage,  and  such  citation  contains  as  intimation 
that  in  default  of  your  so  doing  the  court  will  proceed  to 
hear  the  said  petition  proved,  in  due  course  of  law,  and  to 
pronounce  sentence  thereon,  your  absence  notwithstanding, 
and  a  further  intimation  that,  for  the  purpose  aforesaid,  you 
are  to  attend  in  person  or  by  your  solicitor  at  the  divorce 


PEACTICE  AND  PKECEDENT.  275 

registry  at  Somerset  House,  Strand,  in  the  County  of  Mid- 
dlesex, and  there  to  enter  an  appearance  in  a  book  provided 
for  that  purpose,  without  which  you  will  not  be  allowed  to 
address  the  court  in  person  or  by  counsel  at  any  stage 
of  the  proceedings  in  the  cause. 

D.  W.  OWEN,  Eegistrar. 
BURTON  &  STANLEY, 
Solicitors,  116  Fenchurch  st.,  London, 

England. 

If,  however,  a  defence  is  made,  or,  if  the  wife  is  com- 
plainant, and  the  husband  is  within  the  jurisdiction  of  the 
court,  the  proceedings  are,  or  may  be,  more  extended  and 
complicated. 

The  first  step  usually,  is  for  the  wife,  whether  complain- 
ant or  defendant,  to  move  for  temporary  alimony  and  a 
solicitor's  fee,  also  suit  money ;  that  is,  for  means  to  support 
herself  and  children  during  the  pendency  of  the  litigation, 
for  money  to  pay  her  solicitor,  and  to  maintain  the  costs  and 
expenses  of  the  suit.  This  motion  is  usually  supported  by 
affidavits  setting  forth  the  style  of  life  the  parties  lived  in, 
and  the  husband's  faculties — that  is,  his  wealth  and  income. 
Counter  affidavits  are  allowable  both  in  denial,  and  also  to  show 
that  the  wife  has  a  separate  income  of  her  own,  sufficient,  or  is 
leading  an  adulterous  life,  and  the  courts  grant  or  with- 
hold the  demand,  in  a  summary  way.  Any  such  order, 
if  an  allowance  is  made,  is  appealable  in  Illinois,  and  per- 
haps elsewhere,  but,  in  general,  no  appeal  lies  from  an  in- 
terlocutory order,  as  this  is. 

Sometimes  the  wife,  whether  plaintiff  or  defendant,  ob- 
tains an  injunction  against  the  husband  transferring  his  pro- 
perty until  the  suit  is  decided,  or,  until  be  gives  security 
to  pay  any  alimony  she  may  ultimately  obtain.  The  de- 
fendant then  considers  of,  and  determines  upon,  the  defence, 
which  varies,  of  course,  according  to  circumstances. 

The  character  of  the  defence  may  be  arrayed  under  the 
following  heads  or  titles  : 

1.  Plea  to  the  jurisdiction  of  the  court,     (a)  that  it  has 


276  MARRIAGE  AND  DIVORCE. 

no  jurisdiction  over  the  subject  matter,  (b)  That  it  has  no 
jurisdiction  over  the  person,  either  of  the  plaintiff  or  defend- 
ant, or  both. 

2.  Demurrer  to  bill,  which  admits  all  the  facts  charged, 
but  denies  that  it  gives  any  right  of  action. 

3.  Special  pleas,  as  laches  (or  too  long   delay  to   sue), 
collusion,  condonation,  recrimination  or  connivance. 

(4.)  Answer,  which  is  the  usual  mode  of  defense,  and 
which  may  also  embrace  a  demurrer  and  plea ;  in  other  words, 
a  party  may  demur,  plead  and  answer  all  in  one  document. 
The  defendant  having  put  in  his  defence,  may  next  exhibit  a 
cross-bill  against  the  complainant,  which  constitutes  the  com- 
plainant a  defendant  as  to  the  cross-bill,  and  demands  a 
distinct  defence  to  it,  and  similar  proceedings  as  in  an  original 
suit.  Both  suits  are  usually  tried  together,  and  it  may  occur 
that  a  divorce  may  be  denied  to  the  complainant  on  the 
showing  made  by  his  original  bill  and  allowed  to  the  defen- 
dant on  the  cross-bill ;  or  both  bills  may  be  dismissed,  but  it 
could  scarcely  occur  (though  logically  possible)  that  both 
could  obtain  a  divorce. 

After  the  issues  are  settled,  proofs  are  taken,  generally  by 
deposition,  then  the  hearing  is  had.  In  some  jurisdictions, 
oral  evidence  is  authorized  to  be  taken  at  the  hearing,  and  in 
others  not — it  must  be  wholly  by  deposition:  in  some 
jurisdictions  the  parties  can  testify  fully  in  their  own  behalf 
and  they  always  may  be  examined  by  the  opposite  party,  but 
need  not  give  evidence  tending  to  convict  them  of  a  crime,  as 
assault  and  battery,  or  adultery,  or  bigamy :  in  other  juris- 
dictions, they  can  only  testify  as  to  the  fact  of  marriage,  and 
in  others,  not  at  all.  The  particeps  criminis  in  adultery, 
even  though  a  prostitute,  or  a  detective,  may  be  heard,  but 
not  much  weight  usually  is  given  to  their  testimony.  In  some 
jurisdictions,  jury  trials  are  ordered  to  decide  matters  of  fact ; 
in  others,  a  jury  may  be  had  at  discretion  of  court,  and,  in 
still  others,  the  judge  or  chancellor  hears  the  case,  and  in 
one  State,  there  must  be  the  verdicts  of  two  successive  juries. 


PRACTICE  AND  PRECEDENT.  277 

The  first  proof  in  order,  is  of  the  marriage ;  if  that  fails,  the 
bill  is  dismissed  without  going  further.  In  point  of  fact,  the 
lawyer-like  mode  of  raising  that  specific  issue  would  be  by  a 
special  plea  containing  nothing  more,  for,  if  the  marriage 
failed,  the  foundation  of  the  entire  structure  was  wanting.  If 
a  decree  of  divorce  is  allowed,  and  the  wife  is  complainant, 
or  if  the  decree  is  in  her  favor  if  she,  being  defendant,  files  a 
cross-bill,  the  question  of  alimony  and  the  custody  of  the 
children  is  to  be  determined,  and,  if  any  serious  question 
arises  on  that  branch  of  the  case,  a  reference  is  had  to  a  mas- 
ter to  take  proofs  of  the  husband's,  and  likewise  of  the  wife's, 
faculties;  i.  e.,  the  wealth,  income  and  style  of  living.  The 
decree  is  then  written  out  by  the  prevailing  solicitor,  and 
entered  of  record.  An  appeal  will  lie,  in  which  case  the  hus- 
band must  provide  temporary  alimony,  suit  money  and 
solicitor's  fee  for  the  prosecution  of  the  appeal,  and,  if  the 
decree  is  affirmed,  then  it  must  be  enforced :  but  as  to  alimony 
and  custody  of  children,  it  may  be  modified  at  any  time  or 
term  afterward.  In  some  jurisdictions,  the  wife  may  pray 
for  leave  to  resume  her  maiden,  or  any  previous,  name,  and,  if 
she  gets  a  decree,  her  prayer  will  be  allowed.  There  is  no 
settled  or  stable  rule  as  to  the  disposition  of  the  children.  The 
father  is,  in  strict  law,  the  guardian  of  all  his  children,  but  un- 
less the  mother  is  adulterous  or  otherwise  unsuitable,  she  gener- 
ally is  awarded  the  custody  of  the  extremely  young  children, 
and  especially  of  those,  nursing.  In  such,  or  any  other  case, 
the  other  parent  is  usually  allowed  to  visit  the  child  not  in 
his  or  her  custody,  at  stated  times.  My  recollection  is  that 
Mrs.  Leslie  Carter  is  allowed  to  have  the  custody  of  her  child 
one  week  in  the  year,  a  privilege  which  she  avails  herself  of, 
and  prizes  very  highly.  In  some  States,  and  noticeably  in 
England,  the  particeps  criminis  is  joined  as  a  co-respondent, 
and  served  with  process,  and  frequently  is  amerced  in  the 
costs,  or  part  of  them.  A  service,  either  of  the  main  defend- 
ant or  the  co-respondent,  if  the  same  be  made  within  the 
jurisdiction  of  the  court,  is  good  if  made  in  the  penitentiary, 


MARRIAGE  AND  DIVORCE. 

or  in  an  insane  hospital.  An  infant  wife  may  sue,  if  she  has 
attained  the  age  of  legal  consent,  for  nullity  of  the  marriage. 
Several  causes  for  action  may  be  joined  in  the  same  bill  or 
libel,  without  being  open  to  the  charge  of  multifariousness. 
The  jurisdictional  clause  should  never  be  omitted  from  the 
bill  or  libel,  as  that  the  complainant  has  resided  in  the  State 
for  more  than  one  year,  or  more,  as  the  case  may  be,  or  that 
the  cause  of  action  arose  within  that  jurisdiction.  Some 
pleaders  include  a  clause  negativing  collusion  and  condona- 
tion, but  it  is  needless,  and,  indeed,  is  not  good  practice.  The 
allegations  and  proofs  must  correspond ;  and  the  proof  of  all 
facts  alleged,  either  in  attack  or  defence,  devolves  upon  the 
party  who  affirmatively  urges  them.  A  pleader  secures  a  very 
bad  name  who  states  indelicate  facts  in  a  manner  to  indicate 
that  they  appear  savory  to  him ;  language  just  as  graphic 
and  emphatic,  which  does  not  jar  upon  the  senses,  can  be 
employed  to  narrate  the  nastiest  details,  and  should  be  so 
done.  A  practitioner  must  sometimes  deal  in  obscene  matters, 
but  if  he  be  a  gentleman  and  a  man  of  sense,  he  can  develop 
his  ideas  fully,  without  raising  a  blush  on  the  cheek  of 
modesty,  and  he  will  prosper  with  his  suit  all  the  more  for 
doing  so.  This  remark  applies  all  along  the  line,  commenc- 
ing with  the  office  consultation  and  ending  with  the  draught- 
ing of  the  decree. 

One  of  the  most  sacred  and  solemn  duties  of  an  honor- 
able profession  is  to  treat  with  ideal  and  refined  delicacy 
the  divorce  client  in  the  office,  and,  more  especially,  if  the 
client  be  a  female.  It  is  one  of  the  most  delicate  trials  of  a 
pure  woman's  life  to  approach  a  lawyer,  and  confide  her  mari- 
tal secrets  to  him.  There  is  a  way  to  inspire  confidence  and 
courage  in  the  most  timid  woman,  if  rightly  managed.  The 
way  to  do  is  to  put  a  very  few  terse  questions,  modestly,  but 
with  a  matter-of-fact,  confident  air,  as  if  it  was  common- 
place ;  and  waive  aside  any  long  narrative ;  any  ordinary  di- 
vorce case  has  but  a  few  strong  points,  which  the  practi- 
tioner can  gather  up,  in  a  few  moments,  and  can  state,  his 


PKACTICE  AND  PKECEDENT.  279 

conclusion  in  a  few  words.  He  has  no  more  business  to  pry 
into  details  than  any  outsider  has ;  because  he  has  a  good 
chance  to  revel  in  the  murky  realms  of  the  libidinous  or  ob- 
scene with  an  unfortunate  person  for  an  auditor,  is  no  rea- 
son for  so  doing ;  if  he  has  a  pruriency  that  cannot  be  ap- 
peased, he  should  at  least  dismiss  his  auditor,  and  take 
some  other  mode  of  appeasing  a  detestable  craving.  Similar 
action  will  apply  to  the  pleadings  and  court  examinations ; 
all  should  be  delicately  and  considerately  done.  A  court  re- 
bels at  once  at  a  practice  of  either  awkward  or  premeditated 
indulgence  in  superfluous  nastiness.  I  have  tried  many  di- 
vorce cases,  and  had  many  more  consultations,  but  never 
used  an  heterodox  word,  and  never  found  any  necessity  for  a 
single  scrap  of  oral  or  orthographical  indecency.  A  court 
does  not  need  that  such  ideas  as  are  incident  to  divorce  cases 
be  paraphrased ;  "  a  wink  is  as  good  as  a  nod"  in  an  unsavory 
divorce  suit. 

A  client  should  be  frank  and  disengenuous  with  his  or  her 
lawyer,  and  not  hesitate  to  put  him  in  possession  of  all  need- 
ed facts,  and  not  suppress  any  from  motives  of  delicacy,  or 
otherwise.  It  is  professional  with  the  practitioner,  and  has 
no  further  effect  upon  his  sensibilities  than  the  trite  facts  of 
a  suit  on  a  land  contract. 

Lord  Mansfield  said  that :  "  Indecency  of  evidence  is  no 
objection  to  its  being  received  when  it  is  necessary  to  the  de- 
cision of  a  civil  or  criminal  right."1  And  Lord  S  to  well  said ; 
'*  Courts  of  law  are  not  invested  with  the  power  of  selection ; 
they  must  take  the  law  as  it  is  imposed  on  them.  Courts  of 
the  highest  jurisdiction  must  often  go  into  cases  of  the  most 
odious  nature  when  the  proceeding  is  for  the  punishment  of 
the  offender ;  here  the  claim  is  for  a  remedy,  and  the  court 
cannot  refuse  to  entertain  it  on  any  fastidious  notions  of  its 
own."2  But  an  American  judge  said  very  properly :  "Courts 
may,  and  always  should,  require  the  examination  of  witness- 

1  Cowp..  729.    2  3  Phillim.,  325. 


280  MAKRIAGE  AND  DIVOKCE, 

es  to  be  conducted  in  a  spirit  of  due  delicacy,  avoiding  vulgar 
and  obscene  language."1 

If  the  residence  and  domicil  is  bona  fide,  a  party  is  not 
bound  to  remain  there  after  he  has  filed  his  bill  or  libel ;  all 
that  is  required  is  that  he  shall  have  a  bona  fide  domicil  at 
the  time  of  bringing  suit.  After  suit  is  brought,  he  may  re- 
move elsewhere,  as  well  after  suit  brought,  as  after  decree. 

It  is  not  lawyer-like  pleading  to  negative  a  defence  in  ad- 
vance in  a  bill,  as  condonation,  connivance,  or  the  like ;  the 
defendant  may  not  charge  any  special  defence  of  that  kind, 
and,  if  he  or  she  does,  the  formal  replication  sufficiently 
and  effectually  denies  it.  Where  adultery  is  charged,  make 
it  as  specific  as  practicable,  both  as  to  time,  place  and  per- 
son, and  then  add  a  clause  charging  it  likewise  with  some 
person,  time  and  place,  to  the  complainant  unknown.  In  an 
answer,  the  better  practice  is  to  state  all  the  denials,  and  affirm- 
atively answer  all  the  allegations  of  the  bill  or  libel,  and  then 
state  the  positive  averments  of  defence,  as  condonation,  re- 
crimination, etc.  If  the  defendant  intends  to  also  seek  a 
divorce  in  a  cross-bill,  it  is  desirable  to  file  his  answer  and 
cross-bill  simultaneously,  so  as  to  prevent  the  complainant 
from  dismissing  his  bill  or  libel,  which  he  has  a  right  to  do 
at  any  time  antecedent  to  the  filing  of  the  cross-bill,  but 
no  right  to  do  so  thereafter.  Wherever  the  law  allows  the 
waiver  of  the  oath,  but  allows  the  examination  of  the  ad- 
verse party  as  a  witness,  it  is  well  to  waive  the  oath,  as  if 
the  oath  be  not  waived  it  has  the  force  of  two  witnesses  to  be 
overcome ;  while,  if  you  need  his  or  ner  evidence,  he  or  she 
can  be  put  upon  the  stand,  and  the  evidence  have  only  the 
force  of  one  witness.  In  desertion  cases,  it  is  necessary  to 
show  that  there  was  no  valid  cause  for  it. 

In  the  old  English  practice,  in  adultery  cases,  it  was  al- 
lowable to  ask  the  witness  who  might  testify  as  to  apparent 
facts  and  circumstances  tending  to  show  adultery,  what  his 
opinion  was  on  the  subject ;  such  is  not  the  practice  here. 

1  8  Fla.,  243. 


PEACTICE  AND  PRECEDENT.  281 

The  witness  must  merely  state  what  he  saw,  and  the  court 
will  draw  the  inference. 

In  most  of  States,  as  we  have  seen,  the  only  restrictions 
upon  marriage  are,  that  the  guilty  party  cannot  marry,  but 
this  is  a  brutem  fulmen,  if  the  parties  choose  to  seek  another 
jurisdiction :  but,  in  some  States,  it  is  provided  by  statute, 
that,  if  such  a  party  marries,  even  in  another  State,  in  vio- 
lation of  such  order,  it  shall  have  the  same  force  as  if  cele- 
brated in  that  State ;  i.  e.,  it  would  be  either  a  contempt  of 
court,  or  a  nullity,  or  bigamy,  as  the  case  might  be.  In 
Louisiana,  it  is  forbidden  to  marry  the  accomplice  in  adul- 
tery, and  it  is  made  bigamy  to  do  so.  In  several  States,  as 
I  have  shown,  in  case  of  undefended  divorce,  or  nullity  suits, 
the  prosecuting  attorney  must  attend  and  defend.  In  Mon- 
tana, this  excellent  statute  is  of  force,  and  it  should  be  univers- 
ally adopted,  as  any  person  of  good  instinct  would  affirm, 
could  he  see  the  lecherous  crowd  which  flocks  to  the  Chicago 
divorce  courts  on  the  trial  of  default  cases,  hoping  to  hear 
scandalous  details  in  cases  they  have  no  interest  in,  at  all. 
"In  an  action  for  divorce,  the  court  may  direct  the  trial  of 
any  issue  of  fact  joined  therein,  to  be  private,  and,  upon 
such  direction,  all  persons  may  be  excluded,  except  the 
officers  of  the  court,  the  parties,  their  witnesses,  and  coun- 
sel." 

The  practice  is  substantially  the  same  in  all  the  States  and 
Territories.  Commencement  of  the  suit  is  by  bill  or  petition, 
setting  up  the  necessary  facts,  and  praying  for  the  desired  re- 
lief. Whether  the  bill  or  petition  must  be  sworn  to,  depends 
upon  the  local  statute. 

The  issuance  of  summons  citing  the  defendant  in  court  is 
the  next  step.  If  the  defendant  is  a  non-resident,or  can  not 
be  found,  upon  affidavit  of  such  fact  being  made,  a  publica- 
tion is  ordered  in  the  nearest  newspaper,  usually  for  three  or 
four  weeks ;  in  some  States,  it  is  required  to  mail  a  newspa- 
per, or  other  notice,  to  the  mail  address  of  the  defendant, 
where  known. 


282  MARIITAGE  AND  DIVORCE. 

At  the  proper  time  the  hearing  ensues:  delays  are  not 
usual  in  this  class  of  cases.  In  some  States,  a  reference  may 
be  had  to,  and  a  report  made  by,  a  master  of  the  court ;  in 
others,  the  court  itself  will  hear*  the  case  in  open  court ;  in 
fact,  it  is  believed,  the  latter  regulation  is  becoming  quite 
general  in  the  new  States  on  account  of  the  abuses  inherent 
in  the  other  practice :  sometimes,  property  matters  are  in- 
volved, and  injunctions  are  obtained.  Alimony,or  a  support 
from  a  husband  to  a  wife,  is  one  of  the  ordinary  incidents  of  a 
contested  suit ;  sometimes,  by  special  statute,  the  aid  of  a 
jury  is  sought  to  investigate  controverted  facts.  In  some 
States,  in  ex-parte  suits,  the  evidence  is  required  to  be  writ- 
ten out  and  preserved  in  the  record ;  no  decree  is  obtainable 
except  on  proof ;  a  mere  default  does  not  entitle  a  party  to 
relief.  In  cities  where  they  have  open  divorce  courts,  a  beast- 
ly assemblage  of  licentious  loafers  usually  attend  the  entire 
sessions  of  court,  eager  to  snap  up  all  the  crumbs  and  morsels 
of  scandal  and  prurient  revelations  possible,  but  it  is  held 
that  disgusting  details  must  not  be  withheld,  when  necessary 
for  the  enlightenment  of  the  court,  in  divorce  cases. 

These  cases  are  tried  in  civil  courts,  like  other  chancery 
cases. 

Appeals  in  some  jurisdictions  are  freely  allowed,  and  in 
others  not ;  in  some  jurisdictions,  also,  appeals  may  be  had 
on  certain  conditions,  or  in  certain  states  of  case ;  each  spe- 
cific locality  must  be  scrutinized  in  order  to  determine  the 
extent  of  appeal.  The  fact  of  marriage  may  be  shown  by 
the  record  thereof,  if  there  be  a  record,  or,  in  many  of  the 
States,  by  statute,  by  general  reputation,  proof  of  cohabita- 
tion, or  admission  of  the  defendant ;  there  is  usually  no 
difficulty  in  this  stage  of  the  case.  In  nearly  all  of  our 
States,  parties  themselves  are  competent  witnesses.  Deposi- 
tions may  be  taken  ordinarily  in  divorce,  as  in  other  cases. 

A  cross-bill  may  be  filed  by  defendant,  in  which  a  di- 
vorce may  be  sought  against  the  complainant,  or,  in  States 
where  a  separate  maintenance  is  allowed,  it  may  be  brought 


PRACTICE  AND  PRECEDENT.        283 

by  cross-bill  for  that  relief;  several  causes  for  divorce  may 
be  alleged  in  the  same  bill  or  cross-bill,  and  it  will  not  be 
multifarious  on  that  account. 

There  are,  in  some  States,  two  kinds  of  divorce :  one  is 
a  vinculo  matrimonii,  and  the  other,  or  limited  kind,  a  mensa  et 
thoro ;  the  first  is  an  absolute  divorce,  the  second  may  be 
only  for  a  limited  time,  in  the  further  discretion  of  the  court. 
In  some  States,  a  divorce  debars  the  defendant  from  marrying 
again,  but,  in  the  newer  States,  there  is  usually  no  bar  at  all. 
In  some  States,  the  wife  may  resume  her  maiden  name,  or 
that  of  any  former  husband,  by  decree. 

Custody  of  children  is  confided  to  the  discretion  of  the 
court ;  if  the  mother  is  an  adulteress, especially  if  she  embrac- 
es the  life  of  a  prostitute,  all  the  children  will  ordinarily  be 
taken  from  her ;  if  the  husband  be  shown  to  be  unsuitable  to 
have  charge  of  the  children,  and  the  mother  to  be  suitable, 
they  may  all  be  withdrawn  from  his  charge. 

The  pleadings  and  decree  in  a  divorce  suit  become  a 
matter  of  record,  and  transcripts  thereof  may  be  had  by 
any  one  who  chooses  to  pay  the  clerk  for  making  them,  but 
it  is  not  in  any  wise  necessary  for  any  person  to  be  pos- 
sessed of  the  decree,  nor  will  it  make  their  divorce  any  the 
more  effective.  It  is  the  facts  only,  and  legally  entered  of 
record,  which  constitute  the  effective  work,  not  certainly  a 
finely  engrossed  copy  of  the  decree ;  there  are  probably  a 
ton  or  more  transcripts  of  Utah  divorce  decrees  in  the 
hands  of  our  various  fellow-citizens,  and  which  cost  per- 
haps millions  of  dollars  to  obtain :  if  they  were  all  collected 
together,  their  aggregate  value  would  be  just  the  value  of 
waste  paper,  and  no  more.  It  is  believed  that  no  jurisdic- 
tion exists  now  where  "incompatibility  of  temper"  is  an 
avowed  cause  for  divorce ;  it  was  an  implied  cause  in  Indiana 
a  few  years  ago,  and  brought  the  State  into  such  scandal  and 
disrepute,  that  no  State  has  ventured  to  re-enact  it.  If  a 
decree  of  divorce  or  nullity  had  been  procured  by  fraud,  it 
may  be  vacated  at  any  time  by  a  direct  proceeding  for  that 


284  MABKIAGE  AND  DIVORCE. 

purpose,  but  a  collateral  proceeding  will  not,  ordinarily, 
avail  therefor.  If  the  court  pronouncing  the  decree,  had  no 
jurisdiction  over  the  subject  matter,  or  over  the  parties,  as 
in  the  Utah  cases,  then  the  divorce  is  absolutely  void, 
and  may  be  questioned  even  collaterally  by  any  interested 
person ;  a  valid  decree  in  one  State  may  be  pleaded  in  bar 
of  a  suit  for  divorce  in  another  State,  but  its  validity  may 
be  tested  on  an  issue  formed  for  that  purpose. 

A  divorce  will  not  be  granted  upon  the  uncorroborated 
testimony  of  husband  and  wife ;  a  court  has  power  to  vacate 
a  decree  of  divorce  for  fraud  or  imposition,  and  will  do  so 
when  the  fraud  or  imposition  is  clearly  shown. 

THE    ESPECIAL    PRACTICE    IN    CHICAGO. 

There  are  two  several  courts  in  Chicago  which  have  juris- 
diction of  divorce  suits,  viz. :  the  Circuit  court,  and  the  Sup- 
erior court.  Each  of  those  courts  have  three  judges  assigned 
to  transact  chancery  business,  and  divorce  suits,  of  course, 
belong  to  the  chancery  calendar. 

The  mode  of  procedure  is  to  file  a  bill,  setting  forth  the 
grievances  complained  of,  and  a  demand  for  the  relief  de- 
sired, whether  for  divorce  simply,  or  for  alimony  and  cus- 
tody of  children  also.  The  fees  payable  upon  the  filing  of 
this  bill  are  $6.00,  to  the  clerk,  and  one  dollar  to  the  sheriff, 
provided  service  is  to  be  had  upon  the  defendant ;  otherwise  ten 
cents  if  the  defendant  is  not  to  be  served,  simply  for  the  re- 
turn of  the  writ.  If  defendant  be  a  non-resident,  then  a  pub- 
lication must  be  had  in  some  newspaper  of  general  circula- 
tion within  the  county,  for  four  successive  weeks,  the  inter- 
val of  time  between  the  first  publication  and  the  first  day  of 
the  term  of  court  to  be  forty  days.  The  cost  of  publication 
is  usually  three  dollars.  The  Chicago  Legal  News  is  the 
paper  usually  sought.  Then,  copy  of  the  notice  must  be 
mailed  to  the  defendant,  if  his  or  her  residence  be  known. 
There  are  no  co-respondents  to  be  served  with  process  in  this 
State. 


PEACTICE  AND  PRECEDENT.  285 

After  service  is  had,  or  publication  has  been  made  for  a 
sufficient  statutory  time,  the  case  is  subject  to  the  following 
rule  of  court,  being  rule  No.  8  of  each  court : 

8. — DIVORCES   AND   DEFAULT   CASES. 

All  divorces  and  other  default  cases,  in  which  notice 
shall  be  given  the  clerk  to  place  the  same  upon  the  default 
calendar,  will  be  heard  upon  {Saturday  of  each  week.  No 
references  shall  be  allowed  in  divorce  cases  except  as  to 
question  of  alimony,  and  all  testimony  must  be  taken  by 
depositions  or  in  open  court,  When  taken  in  open  court,  it 
must  be  taken  in  shorthand,  written  out  and  presented  to 
the  court,  and  filed,  before  a  decree  will  be  entered.  No  de- 
cree of  divorce  will  be  granted  upon  the  unsupported  testi- 
mony of  the  complainant. 

When  an  answer  is  filed  the  case  may  be  placed  on  the 
trial  calendar,  upon  notice  and  motion  thereof,  and  heard  in 
its  order. 

The  cost  of  the  stenographer  is  $5.00  for  attendance  in 
an  ordinary  case,  and  twenty  cents  per  folio  for  writing  out 
the  evidence,  the  whole  not  exceeding  ten  dollars  in  all. 

The  Circuit  court  sits  on  the  third  Monday  of  each  month, 
and  the  Superior  court  on  the  first  Monday  of  each  month. 
Vacation  of  both  courts  commences  on  the  third  Monday  in 
July,  and  terminates  on  the  Saturday  preceding  the  third 
Monday  in  September  of  each  year.  No  business  in  divorce 
suits  is  usually  done  in  vacation. 

The  judges  are  lawyers  of  great  probity  and  legal  learn- 
ing, and  scrutinize  each  case  with  care ;  but,  notwithstand- 
ing, many  fraudulent  divorces  are  obtained.  There  is  such  a 
large  floating  population  in  Chicago — traveling  men,  actors, 
casual  visitors,  etc.,  who  really  are  hardly  citizens  of  Illinois, 
yet  who  may,  with  a  very  little  strain  of  conscience,  claim  a 
residence  there,  that  many  divorces  are  obtained,  some  of 
which  are  entirely  unauthorized;  and  others  of  which,  though 
somewhat  "off  color/'  might,  nevertheless,  pass  through  a 
judicial  contest. 

I  annex  in  this   place,  and  as   somewhat  illustrative  of 


286  MA.EEIAGE  AND  DIVORCE. 

this  subject,  and  as  conclusive  of  the  rule  of  our  Supreme 
court  on  the  subject  of  fraudulent  divorces  in  general,  the  re- 
cent case  of  Caswell  vs.  Caswell,  120  111.,  377: 

"  This  was  a  bill  in  the  nature  of  a  bill  of  review  brought  on 
December  22,  1883,  to  impeach  and  annul  a  decree  of  di- 
vorce *  *  entered  at  the  September  term,  1869,  of  said 
court,  on  the  ground  of  its  having  been  fraudulently  obtained. 
Court  said :  '  There  is  no  doubt  *  *  that  the  decree  of 
divorce  was  fraudulently  obtained.  It  is  insisted,  however, 
that,  if  that  be  so,  all  of  fraud  that  there  was,  was  in  obtain- 
ing the  decree  by  false  evidence,  and  that  for  such  a  fraud,  a 
judgment  or  decree  cannot  be  impeached  in  a  separate  and 
independent  proceeding,  and  admitting  the  rule  to  be  other- 
wise where  the  fraud  complained  of  is  a  fraud  whereby  the 
court  was  given  a  colorable  jurisdiction  of  the  defendant's 
person,  when  there  was  not  real  jurisdiction  of  it,  and  it  is 
denied  that  there  was  any  fraud  of  the  latter  kind  in  the  case.' 
There  is  a  distinction  '  between  these  two  classes  of  cases — 
of  fraud  in  giving  jurisdiction,  and  fraud  committed  after 
the  jurisdiction  had,  in  fact,  attached.' 

"We  are  of  opinion  that  there  was  fraud  here  in  both  the 
respects  named — fraud  in  the  giving  of  false  evidence,  and 
fraud  with  respect  to  giving  jurisdiction.  At  the  time  of  the 
institution  of  the  divorce  proceedings,  and  obtaining  the  de- 
cree of  divorce,  the  defendant  was  not  a  non-resident  of  the 
State  of  Illinois,  but  was  a  resident  of  the  State.  She  was 
absent  from  the  State  temporarily,  only  when  her  husband 
had  sent  her,  willing  and  desirous  to  return  to  him  in  this 
State,  and  being  prevented  from  BO  doing  by  himself.  In 
such  case,  the  husband  cannot  treat  his  wife  as  a  non-resi- 
dent, but  her  residence  and  domicil  are  the  same  as  his. 
Yet  the  complainant,  by  his  false  affidavit,  that  the  defend- 
ant was  a  non-resident  of  the  State,  *  *  induced  the 
court  to  take  cognizance  of  the  case,  upon  notice  to  the  de- 
fendant only  by  publication,  when,  under  the  fact  as  existing, 
there  could  have  been  jurisdiction  of  the  person  of  the  de- 
fendant only  upon  personal  service  of  summons  upon  her,  or 
of  a  copy  of  the  bill,  together  with  a  notice  of  the  commence- 
ment of  the  suit.  *  *  We  find  *  *  that  there 
was  no  jurisdiction  of  the  person  of  the  defendant  in  the  di- 
vorce suit ;  that  by  the  perpetration  of  a  fraud  by  the  com- 
plainant herein,  there  was  given  apparent  jurisdiction  over 


PBACTICE  AND  PEECEDENT.  287 

the  defendant ;  that  the  notice  by  publication  was  not  due 
and  legal  notice,  and  should  be  taken  as  no  notice.  So  that 
the  decree  was  rendered  against  the  defendant  without  notice 
of  the  suit,  or  opportunity  to  defend  against  it. 

"We  think  the  appellee  is  entitled  to  the  relief  she  asks, 
unless  she  is  barred  of  her  suit  by  the  delay  in  bringing  it. 
*  Under  the  circumstances,  we  do  not  think  there  was 
any  unreasonable  delay  in  bringing  the  suit.  *  *  The 
fact  of  appellant's  re-marriage,  of  there  being  children  there- 
of, *  *  and  of  the  hardship  which  will  result  to  in- 
nocent persons  from  setting  aside  the  decree  of  divorce,  are 
dwelt  upon  as  objections  to  the  granting  of  such  relief.  Such 
ill  consequences  we  can  appreciate,  and  must  regret ;  but  yet, 
they  do  not  form  reason  sufficient  for  a  denial  of  the  exer- 
cise of  the  court's  power  to  vacate  such  a  decree,  obtained  by 
fraud,  as  has  been  often  determined."1 

By  this  decision,  it  will  appear  that  the  Supreme  court  of 
Illinois  is  disposed  to  sit  down  hard  upon  fraudulent  divorces, 
although,  it  must  be  confessed,  that  this  was  a  glaring  and 
extreme  case. 

I  will  add  the  following  rule  of  court  as  applicable  to  di- 
vorce cases,  where  there  is  a  contest : 

BULE  13. 

Ordered,  That,  in  all  cases,  heard  in  this  court,  the  parties 
shall  prepare  an  abstract  or  abridgment  of  their  respective 
pleadings,  and  of  the  evidence,  when  the  same  shall  have 
been  taken  by  deposition  or  before  a  master  in  chancery,  and 
such  abstract  of  the  pleadings  and  evidence  shall  be  read  on 
the  hearing  in  lieu  of  the  original  pleadings  and  depositions. 

A  female  plaintiff  who  obtains  a  decree  of  divorce  may  be 
restored  to  her  maiden  name  or  to  that  of  any  former  hus- 
band, in  the  following  States,  viz. :  Massachusetts,  Vermont, 
Khode  Island,  Connecticut,  Ohio,  Illinois,  Minnesota,  Kansas, 
Kentucky,  Georgia,  Texas,  Washington,  Oregon,  Missouri, 
Nevada,  Arkansas,  District  of  Columbia,  Arizona;  and  in 
Vermont  the  names  of  the  minor  children  may  be  changed ; 
likewise  in  District  of  Columbia,  Texas, Washington,  Arizona, 

1  30  Wis.,  452.  46  Iowa,  648.  46  Iowa,  437.  6  Minn  ,  458.  23  Kan.,  513.  51 
N.  H.,  388. 


288  MARKIAGE  AND  DIVORCE. 

and  Oregon  the  wife's  name  may  be  changed  in  any  divorce 
suit  to  which  she  is  a  party. 

DERIVATIVE   OB   UNWRITTEN   LAW. 

When  a  statute  makes  no  provision  concerning  conniv- 
ance, condonation,  or  recrimination,  it  will  be  assumed  that 
the  legislature  and  courts  "intended  to  adopt  the  general 
principles  which  had  governed  the  Ecclesiastical  courts  of  Eng- 
land,  in  granting  divorces  from  bed  and  board,  so  far  as  they 
were  applicable  and  reasonable. " l 

And  in  the  administration  of  divorce  law  in  this 
country,  all  of  our  courts  rely  on  the  decisions  of  the  Eccle- 
siastical courts,  to  the  same  extent  and  import  that  they  do 
of  common  law  cases. 

The  reasons,  chiefly,  why  the  English  divorce  law  is  not 
imported  into  our  jurisprudence,  are :  (1st)  That  there  were 
no  judicial  divorces  in  England  anterior  to  the  treaty  of  peace 
between  our  country  and  England;  (2d)  That  there  never 
were  any  Ecclesiastical  courts  in  this  country.  Hence,  our 
law-makers  were  compelled  to  hew  out  original  paths  both  as 
to  the  body  of  divorce  law,  and  also  as  to  its  practice ;  and  in 
doing  so,  each  State  had  emphatic  ideas  of  its  own,  as  in 
South  Carolina,  where  they  would  have  no  divorce ;  or  in  New 
York,  where  they  had  but  two  causes ;  or  Indiana,  or  Utah, 
where  mere  dissatisfaction  of  the  marital  yoke  was  sufficient 
cause  for  divorce.  The  decisions  of  the  English  divorce  court 
and  those  of  the  several  States  are  authority  as  in  other  cases 
so  far  as  applicable,  and  when  not  overruled  by  statute. 


FORM  OF  BILL  FOR  DIVORCE. 

STATE  OF  ILLXNOIS,        )  ss.  °mculT  £OUKT' 

CHAMPMGN  COUNTY,      t         OF  THE  OCTOBEE  TEBM  THEEEOF, 

)  A.  D.,  1855. 

In  the  Circuit  court,  within  and  for  the  county  of  Cham- 
paign, and  State  of  Illinois :     To  the  Honorable  David  Davis, 

1  Robbing.    140  Mass.,  528.     1  Johns'  Chy.,  488.     2  Paige,  108.    14  Wend.,  637. 


PRACTICE  AND  PRECEDENT.  289 

Judge  of  said  court 3  in  chancery  sitting:  Humbly  complain- 
ing, showeth  unto  your  Honor,  your  oratrix,  Persis  St. 
John,  of  said  county,  that  her  maiden  name  was  Persis 
Sampson,  and  that,  on  the  19th  day  of  May,  A.  D.,  1838, 
at  Norwalk,  in  the  State  of  Ohio,  by  the  Kev.  William  T. 
McConn,  pastor  of  the  Baptist  church  at  said  Norwalk, 
and  at  and  within  said  church,  your  oratrix  was  duly  and 
legally  joined  in  marriage  with  one  Alpheus  T.  St.  John,  who, 
from  thenceforth,  became,  continued  to  be,  and  still  remains, 
the  lawful  husband  of  your  oratrix;  and,  that,  from  thence- 
forth, your  oratrix  hath  ever  been,  remained,  and  still  doth 
continue  to  be,  a  faithful,  loving  and  obedient  wife  to  said 
Alpheus,  and  constant  to  her  marriage  vows ;  that  there  have 
been  born,  to  your  oratrix,  as  the  issue  of  said  marriage,  and 
who  still  survive,  two  several  children,  to-wit  :Margaret,  now 
aged  sixteen  years,  the  wife  of  one  David  Grow,  but  living  with 
your  oratrix,  as  part  of  her  family  (her  husband  having  de- 
serted her),  and  Thomas,  now  aged  twelve  years,  and  also 
living  with  your  oratrix,  and  constituting  part  of  her  family. 

And  your  oratrix  further  showeth  that  on,  to-wit,  the  first 
day  of  May,  A.  D.,  1852,  the  said  Alpheus,  without  just  cause, 
wholly  deserted  and  abandoned  your  oratrix,  and  that  the  said 
desertion  and  abandonment  hath  continued  unremittently 
since,  and  still  doth  continue ;  and,  that,  the  same  is  of  more 
than  two  years'  duration,  prior  to  the  filing  of  this  bill  of 
complaint. 

And  your  oratrix  avers  that  she  hath  resided  in  the 
State  of  Illinois  for  more  than  one  whole  consecutive  year 
prior  to  the  filing  of  her  bill  of  complaint,  and  that  her  pres- 
ent residence  is  in  Champaign  county,  in  said  State. 

Therefore :  in  view  of  the  premises,  and  inasmuch  as 
your  oratrix  is  remediless  save  in  a  court  of  equity,  where 
matters  of  this  sort  are  cognizable  and  remediable,  she  so- 
licits the  aid  of  this  court  in  the  premises,  and  would,  there- 
fore pray,  that  the  said  Alpheus  T.  St.  John  be  made  a  party 
defendant  to  this  bill,  with  apt  and  proper  words  to  charge 


290  MARRIAGE  AND  DIVORCE. 

him ;  and  that  he  may  be  compelled,  on  or  before  the  first 
day  of  the  next  term  of  this  court,  to  be  and  to  appear  be- 
fore this  honorable  court,  then  and  there  to  answer  all  and 
singular,  the  matters  and  things  herein  set  forth  and 
averred,  but  without  oath  (the  oath  of  said  defendant  being 
herein  expressly  waived), and  that,  at  the  final  hearing  hereof, 
the  bonds  of  matrimony  heretofore  and  now  existing  between 
your  oratrix  and  the  said  Alpheus  may  be  dissolved,  and  your 
oratrix  divorced  from  him ;  and  that  your  oratrix  may  be  en- 
trusted with  the  custody  of  her  said  children ;  and  that  she 
may  have  alimony  awarded  to  her,  to  be  paid  by  the  said 
Alpheus ;  and  that  she  may  be  restored  to  her  maiden  name, 
and  be  known  and  called  by  the  same,  henceforth ;  and  for 
such  other,  further  and  different  relief  as  may  be  in  accord- 
ance with  equity  and  good  conscience.  May  it  please  your 
Honor  to  grant  and  issue  a  writ  of  subpoena,  directed  to  the 
sheriff  of  the  county  aforesaid,  commanding  him  to  subpoena 
the  said  Alpheus  T,  St.  John,  according  to  law,  to  answer  as 
aforesaid,  without  oath.  PERSIS  ST.  JOHN. 

HENRY  C.  WHITNEY,  Complainant's  Solicitor. 

(AFFIDAVIT.} 


MOTIONS.-^(lNTERLOCUTORY.) 

ST.  JOHN    ) 

vs.          >      In  Chancery.     Bill  for  Divorce 
ST.  JOHN.   ) 

The  complainant  now  here  moves  the  court : 

(1.)  For  a  suitable  and  necessary  sum  for  solicitor's 
fees. 

(2.)     For  a  suitable  and  necessary  sum  for  suit  money. 

(3.)  For  the  sum  of  fifty  dollars  per  month  as  alimony 
pendente  lite  for  the  support  and  maintenance  of  herself  and 
her  two  children.  All  to  be  allowed  and  awarded  out  of,  and 
from  the  estate  of,  said  complainant,  under  penalty,  etc. 

WHITNEY,  Solicitor. 


PRACTICE  AND  PRECEDENT.  291 

ST.  JOHN    ^ 

vs.          >      In  Chancery.     Bill  for  Divorce. 
ST.  JOHN.   S 

The  complainant  now  here  comes  and  moves : 
That  a  provisional  injunction  be  issued  out  of,  and  under, 
the  seal  of  this  court,  restraining  and  enjoining  the  defend- 
ant herein  from  aliening,  incumbering,  or  transferring  all  or 
any  portion  of  his  real  estate  lying  within  the  limits  of  this 
county,  until  the  termination  of  this  suit,  or  until  further 
order  of  court  herein,  and  for  a  writ  of  injunction  to  carry 
the  same  into  effect.  WHITNEY,  Solicitor. 


DECREE. 

ST.  JOHN    ^ 

vs.          >      Divorce. 
ST.  JOHN.    ) 

And  now  at  this  day  comes  the  complainant  in  her  own 
proper  person  and  by  Whitney,  her  solicitor,  and  the  re- 
spondent having  been  three  times  solemnly  called,  comes  not, 
but  makes  default,  and  it  is  therefore  ordered  that  a  decree 
pro  confesso  be  taken  against  him,  the  said  respondent.  And 
it  appearing  to  the  court  that  an  affidavit  was  filed  in  this 
case  setting  forth  that  the  said  respondent  was  a  non-resident 
of  the  State  of  Illinois,  and  that  in  fact  the  said  respondent 
was  a  resident  of  San  Raphael,  in  the  State  of  California, 
and  that  a  notice  of  the  pendency  of  this  suit,  according  to 
law,  was  published  in  the  Urbana  Union,  a  weekly  newspaper 
of  general  circulation,  published  in  the  county  of  Cham- 
paign, Illinois,  for  four  successive  weeks,  the  first  of  said 
publications  being  made  over  forty  days  prior  to  the  first  day 
of  the  sitting  of  the  court  at  this  term,  and  that  a  notice  in 
accordance  with  the  statute  of  Illinois  was  mailed  to  said 
respondent,  at  his  said  postoffice  address,  of  San  Raphael, 
in  the  State  of  California.  And  it  further  appearing  to  the 
court  that  the  said  complainant  and  the  said  respondent 
were  duly  intermarried  together  at  Norwalk,  Ohio,  on  the 
19th  day  of  May,  1838,  and  they  have  constantly  since  been, 


292  MARRIAGE  AND  DIVORCE 

and  now  are,  husband  and  wife ;  that  the  maiden  name  of 
complainant  was  Persis  Sampson ;  that  there  were,  as  the 
issue  of  said  marriage,  who  still  survive,  two  children,  to- wit : 
Margaret,  the  wife  of  David  Grow  (but  who  has  deserted  her) 
aged  sixteen  years,  and  Thomas,  aged  twelve  years,  both 
residing  with  complainant,  and  that  complainant  hath  always 
been  faithful  to  her  marriage  vows ;  and  it  also  appearing 
that  the  said  respondent  did,  for  more  than  two  years  prior 
to  the  filing  of  the  bill  herein,  desert  and  absent  himself 
from  complainant,  without  just  cause,  which  desertion  still 
continues ;  and  it  appearing  that  complainant  hath  resided 
in  the  State  of  Illinois  for  more  than  one  whole  year  prior 
to  the  filing  of  the  bill  herein,  and  now,  and  at  the  filing  of 
said  bill,  did  and  doth  reside  in  Champaign  county,  Illinois, 
and  the  court  being  fully  advised  in  the  premises,  doth  order, 
adjudge  and  decree: 

(1.)  That  the  bonds  of  matrimony  heretofore  and  now 
existing  by  and  between  the  complainant  and  defendant  be 
totally  and  forever  dissolved,  and  that  the  said  complainant 
and  defendant  be  divorced. 

(2.)  That  the  complainant  be  restored  to  her  maiden 
name  of  Persis  Sampson,  and  be  called  and  known  by  such 
maiden  name  henceforth. 

(3.)  That  complainant  have  the  custody,  nurture  and 
control  of  her  two  said  children,  free  from  any  interference 
of  defendant  herein. 

(4.)  That  the  sum  of  one  hundred  dollars  solicitor's 
fee ;  the  sum  of  twenty  dollars  for  suit  money :  and  perma- 
nent alimony  of  thirty  dollars  per  month,  to  date  from  the 
filing  of  the  bill  herein,  be  awarded  to  complainant,  to  be  col- 
lected from  the  estate  or  property  of  defendant,  lying  within 
this  State,  and  that  execution  go  therefor :  and  that  respond- 
ent pay  each  and  all  of  said  sums  under  the  pains  and  penal- 
ties of  being  in  contempt  of  this  court. 

(5.)     That  complainant  pay  the  costs  of  this  suit. 

(Entered  and  enrolled  this  29th  day  of  October,  1855.) 


PBACTICE  AND  PRECEDENT.  293 

COPY  OF  BILL  FOR  DIVORCE. 

In  the  Superior  Court  of  Cook  County,  and  State  of  Illinois, 
of  the  March  Term  Thereof,  A.  D.  1878. 

To  the  Honorable  Judges  of  said  Court,  in  Chancery  sitting. 

Mary  F.  Flicker,  the  complainant,  brings  this  her  bill 
against  Jonas  P.  Flicker,  the  defendant,  and  thereupon  the 
complainant  alleges :  (1)  That  the  complainant's  maiden 
name  was  Mary  Forgyne,  and  that  on  the  seventeenth  day  of 
June,  A.  D.  1872,  or  thereabouts,  at  Ithaca,  in  the  State  of 
New  York,  the  said  complainant  and  defendant  entered  into 
a  mutual  contract  per  verba  de  presenti  of  intermarriage  to- 
gether, both  then  and  there  having  the  physical  and  con- 
tractual capacity  of  marriage,  and  at  once  thereupon  con- 
firmed and  consummated  said  marriage  by  cohabitation  to- 
gether, and  they  continued  such  marriage  and  cohabitation 
until  the  sixth  day  of  January  last,  at  which  latter  date,  for 
the  causes  hereafter  to  be  enumerated,  complainant  refused 
further  cohabitation,  and  hath  not  done  so  since  said  latter 
date. 

(2.)  That  constantly  since  the  original  date  of  said  mar- 
riage, complainant  hath  performed  her  marital  vows  in  a  faith- 
ful, lawful  and  obedient  manner,  and  she  hath  endeavored  in 
all  ways  to  retain  the  love  and  affection  of  her  said  husband. 

(3.)  That,  regardless  of  his  marriage  vows,  the  defend- 
ant did,  in  a  certain  bed-chamber  in  a  house  situated  and 
being  at  No.  121  Geronimo  street,  in  the  city  of  Milwaukee, 
Wisconsin,  on  the  12th  day  of  May,  A.  D.  1877,  and  at  di- 
vers times  thereafter,  both  at  the  place  aforesaid  and  at 
divers  other  places,  have  carnal  knowledge  of  one  Kate  Wy- 
gand,  an  unmarried  female,  and  did  then  and  there,  and  at 
each  and  all  of  said  times  and  places,  commit  adultery  with 
the  said  Kate,  without  the  knowledge,  consent  or  acqui- 
escence of  complainant. 

(4.)  That,  regardless  of  his  marriage  vows,  the  defend- 
ant also  did  at  divers  times  and  places  within  the  State 


294  MAKRIAGE  AND  DIVORCE. 

and  jurisdiction  of  Illinois,  to  this  complainant  unknown, 
commencing  on  the  first  day  of  January,  A.  D,  1877,  have 
carnal  and  illicit  knowledge  of,  and  illicit  intercourse  with, 
divers  other  females  whose  names  are  to  this  complainant 
unknown,  but  whose  names  when  ascertained,  complainant 
prays  may  be  inserted  in  this  place,  with  the  same  force  and 
effect  as  if  originally  inserted  here  now. 

(5.)  And  complainant  avers  that  she  had  no  notice  or 
knowledge  of  any  act  of  adultery  on  the  part  of  her  husband 
until  the  sixth  day  of  January  last,  when  he  confessed  the 
perpetration  thereof  to  complainant,  and  that  immediately 
upon  receiving  such  knowledge,  complainant  instantly  with- 
drew from  defendant's  bed,  and  since  then  has  had  no  volun- 
tary sexual  intercourse  with  him. 

(6.)  But  complainant  avers  that  she  had  no  other  home 
or  friends  to  whom  she  could  go,  and  that  she  was  obliged  to 
remain  at  the  home  of  defendant,  and  while  so  remaining 
there,  complainant  was  on  several  occasions  forcibly  assaulted 
by  the  defendant  and  sexually  embraced  by  him,  against  her 
utmost  resistance,  remonstrances  and  protests,  nor  did  com- 
plainant ever  at  any  time  after  said  acts,  or  any  or  either 
of  them,  justify,  approve  of  or  forgive  the  same,  nor  did 
she  in  any  way  co-operate  in,  or  yield  to,  said  embraces 
except  so  far  as  thereto  compelled  by  the  superior  moral 
and  physical  strength  of  defendant. 

(7.)  And  complainant  avers  that  three  children  were  born 
of  said  marriage,  all  now  living  and  in  the  custody  of  com- 
plainant, to-wit:  Jonas,  now  aged  five  years;  Mary  Ann, 
now  aged  three  years,  and  Wilfer,  now  aged  two  years. 

(8.)  Complainant  further  avers  that  she  hath  resided  in 
the  State  of  Illinois  for  more  than  one  year  prior  to  the 
bringing  of  this  suit,  and  that  she  is  now  a  resident  of  the 
county  of  Cook,  therein. 

Complainant  prays : 

(1).  That  the  said  Jonas  P.  Flicker  may  be  made  a  de- 
fendant hereto. 


PRACTICE  A.ND  PRECEDENT.  295 

(2.)  That  he  may  be  compelled  to  answer  this  bill  and  all 
the  several  allegations  of  the  same,  by  next  rule  day,  but  without 
oath,  his  oath  to  said,  or  any  answer,  being  expressly  waived. 

(3.)  That  a  formal  marriage  may  be  declared  to  exist 
between  complainant  and  defendant,  and  that  the  same 
may  be  dissolved  and  annulled. 

(4.)  That  the  custody  of  said  children  may  be  awarded 
to  complainant. 

(5.)  That  complainant  may  be  allowed  to  resume  her 
maiden  name. 

(6).  That  alimony  pendentc  lite,  suit  money  and  a  solic- 
itor's fee,  and  permanent  alimony,  may  be  awarded  to  com- 
plainant. 

7.)  That  an  injunction  may  be  issued  restraining  de- 
fendant from  attempting  to  sexually  know  complainant,  or 
soliciting  same. 

(8.)  And  for  such  other  and  further  relief  as  may  be  legal 
and  proper. 

(9.)     Also  for  subpoena  in  chancery  in  accordance  with  law. 

WELDON  KACKSTRAW,  Solicitor.  MARY  P.  FLICKER. 

STATE  OF  ILLINOIS, 
COUNTY  OP  COOK, 

Mary  P.  Flicker  maketh  oath  and  saith  that  she  is  com- 
plainant in  the  above  and  foregoing  bill,  and  that  the  same 
is  true,  except  so  much  and  such  parts  thereof  as  are  averred 
upon  information  and  belief,  and  so  much  and  such  parts 
thereof,  affiant  believes  to  be  true. 

MARY  P.  FLICKER. 

Subscribed  and  sworn  to  before  me  this  27th  day  of  Feb- 
ruary, A.  D.  1878.  WELDON  EACKSTRAW,  N.  P. 

COPY   OF   ANSWER  IN   DIVORCE   SUIT. 

JONAS  P.  FLICKER,  "1 

ats.  >   In  Divorce. 

MARY  F.  FLICKER.    J 

The  answer  of  the  respondent,  Jonas  P.  Flicker,  to  the 
bill  of  complaint  of  Mary  F.  Flicker,  complainant. 


296  MAKEIAGE  AND  DIVORCE. 

This  respondent,  saving  and  reserving,  etc.,  for  answer  to 
so  much  and  such  parts  of  complainant's  bill  as  he  is  advised 
is  or  are  necessary  to  make  answer  unto,  answering  saith : 

(1.)  Is  not  fully  or  definitely  advised  if  complainant's 
maiden  name  was  Mary  Forgyne,  but  is  willing  to  concede 
that  it  was  so,  and  therefore  admits  that  such  was  the  fact, 
in  manner  and  form  as  charged. 

(2.)  Denies  that  on  June  17, 1872,  or  thereabouts,  at  Ith- 
aca, New  York,  or  at  any  other  time  or  place,  complainant 
and  respondent  entered  into  a  mutual  contract,  per  verba  de 
presenti,  of  intermarriage  together ;  denies  also  that  complain- 
ant and  respondent  "  at  once  "  confirmed  and  consummated 
the  said  or  any  alleged  marriage  by  cohabitation,  together  or 
otherwise ;  denies  that  the  said  alleged  or  any  marriage  and 
innocent  cohabitation  continued  till  January  sixth  last,  or 
otherwise  at  all ;  but  on  the  contrary  thereof,  respondent  ad- 
mits and  alleges  that  on  the  first  day  of  May,  1872,  or  there- 
abouts, respondent  had  carnal  and  illicit  sexual  knowledge  of, 
and  sexual  contact  with,  complainant;  and  that  the  same 
continued  at  intervals  and  periodically,  until  about  ten  days 
before  the  filing  of  complainant's  bill,  when  respondent  with- 
drew from  all  connection  of  any  sort  with,  or  about,  said  com- 
plainant ;  and  respondent  expressly  denies  that  any  or  all 
said  acts  of  cohabitation  was  or  were  lawful  or  legitimate,  or 
in  pursuance  of  any  agreement  of  intermarriage,  express  or 
implied;  but  that  said  sexual  intercourse,  and  every  act 
thereof,  was  licentious,  meretricious  and  illicit,  and  so  under- 
stood and  accepted  by  both  parties ;  that  complainant  fre- 
quently importuned  respondent  to  marry  her,  and  that  re- 
spondent frequently  promised  that  he  would  consider  of  the 
matter,  but  that  he  never  at  any  time  did  in  fact  promise  to 
do  so. 

(3.)  Denies  that  she  performed  her  marital  vows  at  all ; 
denies  that  she  ever  made  any  marital  vows,  to  respondent's 
knowledge,  or  to  him,  or  in  his  presence ;  denies  that  com- 


PRACTICE  AND  PRECEDENT.  297 

plainant  tried  to  retain  defendant's  love  and  affection,  and 
denies  that  he  ever  was  her  husband. 

(4.)  Denies  that  he  ever,  at  the  place  named  in  complain- 
ant's bill,  or  at  any  other  place,  or  at  the  time  or  times 
stated,  or  at  any  other  time  or  times,  had  carnal  knowledge 
of  one  Kate  Wygand,  or  of  any  other  female  except  com- 
plainant, at  any  time  or  place :  but  upon  advice  of  counsel 
and  upon  belief,  respondent  avers  that  complainant  has  no 
right  to  challenge,  inquire  into,  or  complain  of,  any  such  acts, 
and  that  he  does  not  hold  himself  responsible  to  complainant 
for  his  conduct  or  actions  in  any  way  whatever. 

(5.)  Admits  that  respondent  sexually  embraced  complain- 
ant at  many  times  prior  to  ten  days  before  the  filing  of  com- 
plainant's bill,  but  never  by  force,  artifice  or  fraud ;  that 
complainant  and  respondent  mutually  cohabited,  always  with 
the  free  and  voluntary  assent  of  both  parties,  and  that  re- 
spondent never  attempted  to  sexually  know  her  against  her 
consent,  remonstrance  or  protest. 

(6.)  Admits  that  the  children  were  born  as  stated ;  admits 
that  they  are  severally  in  the  custody  of  complainant ;  and 
that  their  given  names  are  as  stated,  but  denies  that  they  have 
been  born  of  any  marriage  known  to  respondent;  and  for 
want  of  accurate  knowledge  of  the  paternity  of  said  children, 
cannot  state  who  their  father  or  fathers  was,  or  were. 

(7.)  And  respondent  admits  that  complainant  has  resided 
in  the  State  of  Illinois  for  more  than  a  year  before  the  filing 
of  her  bill,  and  that  at  the  time  of  filing  her  bill,  she  resided 
in  Cook  county. 

(8.)  And  respondent,  further  answering,  avers  that  even  if 
he  had  carnal  knowledge  of  the  said  Kate  Wygand,  that  the 
same  was  had  by  the  connivance  of  complainant,  who  fre- 
quently, before  the  alleged  sexual  commerce  with  said  Kate, 
suggested  that  respondent  easily  could  and  ought  to  have 
such  commerce ;  and  also  frequently  created  appointments 
for  respondent  to  have  such  commerce :  that  complainant 
frequently  invited  said  Kate  to  her  house,  and  while  said 


298  MARKIAGE  AND  DIVOECE. 

Kate  was  there,  complainant  absented  herself  from  the 
house  on  various  pretenses,  remaining  away  long  enough  to 
admit  of  an  opportunity  to  perform  the  sexual  act  with  said 
Kate,  and  leaving  respondent  and  Kate  in  the  room  together, 
alone.  Eespondent  denies  that  he  ever  at  any  time  had  any 
connection  of  a  sexual  nature  with  said  Kate,  but  avers  that 
complainant  connived  at  his  doing  so,  and  did  all  she  could 
to  incite  defendant  thereto. 

(9.)  And  respondent  further  answering,  avers  that  even  if 
he  had  had  carnal  knowledge  of  said  Kate  Wygand  the  complain- 
ant first  connived  thereat,  and  thereafter  condoned  the  same,  by 
having  sexual  intercourse  with  defendant,  and  solicited  the 
same  from  him  as  lately  as  ten  days  antecedent  to  the  filing 
of  her  bill  in  this  case. 

(10)  And  respondent,  by  way  of  recrimination,  avers  that 
said  complainant  hath  constantly  since,  and  during  the  en- 
tire period  of  his  cohabitation  with  her,  at  intervals,  com- 
mitted fornication  at  divers  times  and  places  with  divers  and 
sundry  men  whose  names  to  respondent  are  unknown,  but  he 
particularly  sets  forth  and  avers  that  during  the  entire  year 
of  1875,  and  the  first  six  months  of  1876,  said  complainant 
was  in  the  habit  of  meeting  one  Phares  W.  Gorgas  at  an  as- 
signation house  at  No.  —  State  street,  Chicago,  every  week  and 
sometimes  more  frequently,  and  of  having  sexual  intercourse 
with  him  at  each  and  every  one  of  said  meetings ;  also  that 
complainant  did,  on  the  25th  day  of  December,  A.  D.,  1877, 
commit  the  crime  of  fornication  with  one  Vincent  Bellamy, 
in  the  city  of  Milwaukee,  Wis.,  at  a  place  to  defendant  un- 
known. 

(11.)  Without  this,  that  there  is  any  other  matter  or  thing 
necessary  to  be  answered  unto,  and  not  herein  well  and  suf- 
ficiently answered :  and  now  having  fully  answered,  he  prays 
to  be  dismissed  with  costs. 

JONAS  P.  FLICKEE. 

EPH.  HUTTON,  Solicitor  for  defendant. 

JOHN  PARKER,  of  counsel. 


XXXVL 

OP  THE  COUKTS. 

As  a  rule,  courts  of  general  jurisdiction,  the  highest 
nisiprius  courts,  are  entrusted  with  the  jurisdiction  of  di- 
vorce cases,  although  it  is  competent  to  vest  inferior  courts 
with  it,  as  is  done  in  Vermont.  These  courts  have  different 
names  in  different  States. 

In  Maine,  the  Supreme  Judicial  court,  sitting  in  the 
county  in  which  either  party  resides. 

In  New  Hampshire,  the  Supreme  court  of  the  county 
which  either  party  resides. 

In  Vermont,  the  County  court  of  the  county  in  which  the 
plaintiff  has  resided  one  year  prior  to  the  institution  of  the 
suit,  where  divorce  is  sought  for  adultery,  intolerable  severity 
or  wilful  desertion,  where  the  cause  accrued  out  of  the  State. 
In  other  cases,  in  the  county  where  either  party  resides. 

In  Massachusetts,  in  the  Superior  court  in  the  county  in 
which  one  of  the  parties  live,  except  that  when  the  libellant 
has  left  the  county  in  which  the  parties  have  lived  together, 
the  adverse  party  still  living  therein,  the  libel  shall  be  heard 
and  determined  in  that  county. 

In  Ehode  Island,  the  Supreme  court  of  the  county  in 
which  the  plaintiff  resides. 

In  Connecticut,  in  the  Superior  court. 

In  New  York,  in  the  Supreme  and  Superior  city  courts. 

In  New  Jersey,  in  the  court  of  chancery. 

In  Pennsylvania,  in  the  court  of  common  Pleas. 

In  Delaware,  in  the  Superior  court  in  the  county  where 
plaintiff  resides. 


300  MARRIAGE  AND  DIVORCE. 

In  Maryland,  in  a  court  of  equity  where  either  party 
resides. 

In  District  of  Columbia,  in  the  Supreme  court  (not  of  U. 
S.,but)  of  District. 

In  Virginia,  in  the  Circuit  and  Corporation  courts, 
(chancery  side),  in  the  chancery  district  in  which  the  defend- 
ant resides,  or  in  the  district  in  which  the  parties  lived 
when  the  separation  occurred,  but  if  the  defendant  is  a  non- 
resident of  the  State,  then  in  the  district  in  which  the  other 
party  resides. 

In  West  Virginia,  in  the  Circuit  court  (chancery  side), 
same  as  to  locality  as  in  Virginia. 

In  North  Carolina,  Superior  court  in  the  county  where 
the  plaintiff  resides. 

In  Georgia,  in  the  Superior  court  in  the  county  where 
the  defendant  resides,  or  if  he  or  she  be  a  non-resident,  in  the 
county  in  which  the  defendant  resides. 

In  Florida,  in  the  Circuit  court. 

In  Alabama,  in  the  Court  of  Chancery,  in  the  Chancery 
district  in  which  the  defendant  resides,  or  in  the  district 
in  which  the  parties  lived  when  the  separation  occurred,  but 
if  the  defendant  is  a  non-resident  of  the  State,  then  in  the 
district  where  the  other  party  resides. 

In  Mississippi,  in  the  Court  of  Chancery,  in  the  same 
district  as  the  preceding. 

In  Louisiana,  in  district  courts  and  parish  courts  in  the 
domicil  of  the  defendant. 

In  Texas,  in  the  District  court  in  the  county  in  which  the 
complainant  has  resided  for  six  months  prior  to  the  institu- 
tion of  suit. 

In  Arkansas,  in  the  Circuit  court  (equity  proceedings)  in 
the  county  where  plaintiff  resides. 

In  Missouri,  in  the  Circuit  court  where  the  plaintiff  re- 
sides. 

In  Iowa,  District  or  Circuit  courts  (equitable  proceedings^ 
in  the  county  where  either  party  resides. 


OF  THE  COURTS.  301 

In  Minnesota,  in  the  District  court  of  the  county  where 
either  party  resides. 

In  Ohio,  in  courts  of  Common  Pleas  in  the  county  where 
the  plaintiff  resides,  or  where  the  cause  of  action  arose. 

In  Indiana,  in  Superior  and  Circuit  courts  in  the  county 
in  which  the  complainant  has  resided  for  six  months  prior  to 
commencement  of  suit.  In  Illinois,  in  the  Circuit  court 
where  plaintiff  resides,  and  Superior  court  of  Cook  county. 

In  Michigan  and  Wisconsin,  Circuit  court,  as  Court  of  Chan- 
cery, in  county  where  either  party  resides.  In  Kansas,  in  Dis- 
trict court  in  the  county  where  the  plaintiff  resides.  In  Nebraska, 
in  the  District  court  where  either  party  resides.  In  the  Dakotas, 
in  the  District  court.  In  Colorado,  in  District  court,  sitting 
as  a  Court  of  Chancery,  also  County  court  when  alimony  asked 
does  not  exceed  $2,000.  In  California,  in  Superior  court. 
In  Nevada,  in  District  court,  in  the  county  in  which  the  cause 
for  divorce  occurred,  or  in  which  the  defendant  or  plaintiff 
shall  reside,  if  the  latter  be  the  county  in  which  the  parties  last 
cohabited,  or  in  which  the  plaintiff  shall  have  resided  six  months 
prior  to  the  suit.  In  Oregon,  in  the  Circuit  court.  In  Washing- 
ton, in  the  District  court  in  the  county  in  which  the  plaintiff 
resides.  In  Montana,  in  the  District  court,  sitting  as  Court 
in  Chancery.  In  Idaho,  in  the  District  court.  In  Wyoming, 
in  the  District  court  in  which  either  party  resides.  In  Utah, 
in  the  District  court  in  the  county  in  which  the  plaintiff  has 
resided  one  year  prior  to  commencement  of  proceeding.  In 
Arizona,  in  the  District  court  in  the  county  in  which  the  com- 
plainant has  resided  for  six  months  prior  to  the  institution  of 
suit.  In  Kentucky,  in  courts  of  general  equity,  jurisdiction 
in  the  county  where  the  wife  usually  resides,  but,  when  she  is 
a  non-resident,  where  the  plaintiff  resides.  In  Tennessee,  in 
Circuit  and  Chancery  courts,  in  the  chancery  district  in 
which  the  defendant  resides,  or  in  the  district  in  which  the 
parties  lived  when  the  separation  occurred,  or,  if  the  defend- 
ant is  a  non-resident  of  the  State,  then  in  the  district  in 
which  the  other  party  resides. 


XXXVII. 
ALIMONY 


is  "  a  provision  for  support  which  a  husband  may  be  adjudged 
to  make  to  his  wife,  when  she  seeks  a  judicial  separation  or 
divorce."  It  is  temporary,  otherwise  called  alimony  pendente 
lite,  when  it  is  ordered  at  the  institution  or  during  the  pen- 
dency of  a  suit  for  temporary  support ;  it  is  permanent  when 
made  for  continuous  support  in  the  future,  upon  or  after  de- 
cree. It  includes  all  allowances,  whether  annual  or  in  gross, 
made  to  a  wife  upon  a  decree  of  divorce.1  It  has  been  denned 
to  be  "the  allowance  to  be  made  to  the  wife  for  her  mainte- 
nance, either  during  a  matrimonial  suit  or  at  its  termination, 
when  she  has  proved  herself  entitled  to  a  separate  mainte- 
nance. Alimony,  although  it  properly  signifies  nourishment 
or  maintenance,  when  strictly  taken,  yet  now,  in  the  common 
legal  and  practicable  sense,  signifies  that  proportion  of  the 
husband's  estate  which  the  wife  sues  to  have  allowed  her  from 
his  present  subsistence  and  livelihood,  according  to  law,upon 
any  such  separation  from  her  husband  as  is  not  caused  by 
her  own  elopement  or  adultery."2 

Notwithstanding  this  general  rule,  there  are  numerous  ex^ 
ceptions  in  our  practice,  and  it  is  held  that  even  where  the 
divorce  is  for  the  wife's  fault,  yet  that  court  may  nevertheless 
enter  a  decree  for  alimony,  the  amount  dependent  upon  the 
equities  of  the  case.  It  has  been  allowed  in  Illinois  even  in  a 
case  of  bigamy ;  in  Nebraska  in  all  cases  except  adultery.3 

Alimony  pendente  lite   continues  during  the  pendency  of 

i  107  Mass.,  428.  2  Shelford  on  Mar.  and  Div.,  586.  3  79  111.,  74.  28  Ind.,  291. 
36  N.  H.,  240.  8  Yerg.,  67.  76  Pa.,  357.  4  Fost.,  564.  108  111.,  120.  9  B.  Mon., 
295.  11  Ala.,  763.  26  Ind.,  189.  59  N.  H.,  23. 


ALIMONY.  303 

the  suit,  and  permanent  alimony  commences  either  at  the  en- 
tering of  the  decree  of  divorce,  or  at  some  antecedent  period 
retroactively,  and  continues  during  the  joint  lives  of  the  parties; 
hence  it  ceases  at  the  death  either  of  the  husband  or  wife.1  66 
How.  Pr.,  346. 

But  when  a  decree  expressly  stated  that  alimony  was  to 
continue  during  the  natural  life  of  the  wife — held,  that  it  so 
continued  even  after  the  husband's  death.2 

Alimony  is,  in  general,  an  incident  to  a  divorce,  even  to  a 
suit  for  divorce,  whether  it  be  granted  or  not ;  but,  suits  for 
alimony,  or  separate  maintenance,  are,  in  some  States,  au- 
thorized without  any  proceedings  for  a  divorce ;  and,  in  a  di- 
vorce a  mensa  et  thoro,  the  principal  consequence  is  alimony.  3 
In  a  suit  for  divorce  by  the  husband,  the  wife  may  file  a  cross- 
bill for  separate  maintenance ;  4  and,  in  the  noted  case  of 
Speight  vs.  Speight,  in  the  Superior  court  of  Cook  Coun- 
ty, Illinois,  in  which  I  filed  a  bill  on  behalf  of  the  husband 
for  divorce,  the  wife  filed  a  cross-bill  for  separate  mainte- 
nance, and  I  was  defeated ;  but  she  prevailed,  and  would 
have  continued  to  draw  alimony  until  the  husband  died,  had 
I  not  devised  a  way  to  avoid  it .  Under  no  circumstances 
can  the  wife  be  required  to  pay  alimony  to  the  husband.  The 
proportion  of  the  husband's  property  or  income,  which  is  al- 
lowed to  the  wife  as  alimony,  either pendente  lite,  or,  after  the 
termination  of  the  suit,  is  in  the  discretion  of  the  court.  5 
And,in  fixing  upon  the  amount  which  is  proper  to  be  allowed, 
the  court  must  take  into  account  the  nature  of  the  husband's 
means,  the  situation  of  the  parties  in  society,  the  amount  of 
the  husband's  income ;  and,  whether  the  same  is  derived 
from  property  already  acquired,  or  from  his  own  personal 
and  daily  exertions.6  It  is  also  proper  for  the  court  to  take 
into  consideration  the  question  whether  there  are,  or  are  not, 
children,  or  other  relations  of  the  husband,  who  have  claims 

1  9  N.  H  ,  309.  7  B.  Mon.,  49.  6  H.  &  J.,  485.  6  W.  &  S.,  85.  3  Dana,  28.  4 
Iowa,  509.  9  B.  Mon.,  294.  15  Abb.  new  cas.,  434.  2  77  Me..  373.  107  111.,  620. 
3Hayw.,  482.  4  H.  &  M.,  507.  3  Dana,  28.  2  Des.,  45.  50  Missis.,  694.  84  Ala., 
363.  60  Iowa,"378.  9  Colo.,  133.  38  Gal.,  265.  125  111.,  510.  1  C.  E.  Green,  162. 
4  76  Ga.,  319.  5  1  Johns.  Chy.,  450.  6  3  Paige,  " 

"BuBL^a^* 

OF  THE 

UNIVERSITY 

OF 


304  MARRIAGE  AND  DIVORCE. 

upon  him  for  sustenance  or  education.  By  the  practice  of 
the  Ecclesiastical  courts  in  England,  the  allowance  to 
the  wife,  as  well  for  temporary  alimony,  pending  the  suit* 
as  for  the  permanent  provision  on  the  decree  of  separation, 
is  settled  upon  what  is  technically  called  an  allegation 
of  faculties.  The  allegation  embraces,  not  only  a  statement 
of  the  extrinsic  property,  but,  also  of  the  casual  income  of  the 
husband,  and  both  are  taken  into  consideration  in  fixing  the 
amount.  And  the  court,  in  settling  the  amount  of  alimony, 
also  takes  into  consideration  the  ability  of  the  husband  to 
provide  for  himself  and  family  by  his  own  exertions.  l 

Where  the  amount  of  the  estate  is  considerable,  it  is 
usual  to  allow  the  wife,  for  permanent  alimony,  one-fourth  to 
one-half  thereof,  where  she  is  not  to  have  the  custody  of  the 
children  of  the  marriage.  And  *  *  where  there  were  no 
children  to  be  provided  for,  the  court  allowed  the  wife  one- 
third  of  the  gross  value  of  the  property,  in  the  shape  of  an 
annuity,  which  was  equal  to  about  half  of  the  annual  income 
during  her  life.  2  But  the  alimony  which  is  allowed  to  the 
wife  for  her  support  during  the  pendency  of  the  suit,  is 
always  allowed  in  a  much  smaller  proportion  than  that  which 
is  assigned  to  her  as  a  permanent  provision,  after  she  has 
established  the  fact  of  such  misconduct  of  the  husband  so  as 
to  entitle  her  to  a  divorce  or  separation.  Alimony  will  be 
granted  in  proportion  to  the  wants  of  the  party  asking  it,  and 
the  ability  of  the  person  who  is  to  pay  it.  3  The  allowance 
depends  upon  the  judicial  exercise  of  discretion.  The  facul- 
ties, separate  property,  and  income,  or  earnings,  of  the  wife, 
are  to  be  taken  into  account  in  decreeing  alimony,  and  she 
will  not  be  allowed  anything  if  she  has  an  ample  and  neces- 
sary support  of  her  own.  4  Parties  may  agree  upon  amount 
of  alimony,  and,  if  fair  and  equitable,  such  agreement  will  be 
upheld.  6 

Although  no  provision  for  alimony  and  support  of  chil- 

Paige,  261.  2 1  Paige,  246.  3  22*111.,  425.  8  B.  Mon.,  50.  7  Hill,  207.  4  How. 
Pr.,  160.  9  Duer,  102.  3  Abb.  Pr.,  144.  *  25  Ind.,  156.  27  Wis.,  531.  2  Phillim., 
40.  22  Ga.,  31.  3  Swab.  &  T  ,  249.  6  5  Paige.  509.  25  Minn.,  72.  125  111.,  <308, 
70  Cal.,619.  65  Iowa,  255.  25  O.  S-,  596.  77  Me.,  373. 


ALIMONY.  305 

dren  was  made  in  the  judgment  of  divorce,  ib  may  be  made 
afterward.1 

A  court  of  chancery  has  power  to  grant  alimony  to  a 
wife  in  Virginia,  even  without  a  contract  for  separation,  when 
the  misconduct  of  the  husband  is  such  as  to  render  it  unsafe 
for  the  wife  to  live  with  him,  or  he  turns  her  out  of  doors 
without  a  support.  But  no  claim  for  any  specific  property.2 

A  divorce  suit,  notwithstanding  final  decree,  is  always 
open  to  hear  motions  concerning  alimony,  or  custody,  or  sup- 
port of  children,  and  changes  therein  may  be  made  from 
time  to  time,  according  to  the  changed  conditions  of  either 
of  the  parties.  If  the  husband  waxes  richer,  or  the  wife 
grows,  from  illness  or  otherwise,  more  necessitous,  the 
amount  may  be  increased,  or,  under  adverse  circumstances, 
may  be  diminished.  As  a  general  rule,  the  husband's  denial 
of  the  charges,  or  the  wife's  prostitution  or  remarriage,  will 
not  bar  a  claim  for  temporary  alimony.  A  lunatic  or  idiotic 
husband  must  pay  alimony  also.  The  charge  against  the 
husband,  if  sustained,  will  have  a  share  in  determining  the 
amount  of  permanent  alimony.  If  he  has  been  extremely 
flagitious,  the  amount  will  be  in  proportion  to  his  marital 
guilt.  Upon  a  similar  principle,  the  wife's  demeanor  will  be 
considered.  If  her  marital  conduct  has  been  exemplary,  it 
will  enhance  the  amount.  If  she  has  acted  ill,  as  in  not  tak- 
ing good  care  of  her  home,  being  abusive  to  her  husband, 
denying  him  the  sexual  contact,  etc.,  the  allowance  will  be 
lessened.  So  if  she  has  been  long  patient  under  ills,  the 
amount  will  be  enhanced.3  The  condition  and  station  in 
life  of  the  husband  is  an  important  element  to  be  considered. 
The  wife  has  a  right  to  live  in  a  style  befitting  the  income 
and  wealth  of  the  husband,  despite  his  niggardly  habits  or 
lack  of  gentility.  She  is  responsible  for  the  appearance  of 
the  home,  and  he  must  furnish  the  means  in  harmony  with, 
not  his  wish,  but,  his  ability,  to  do  so.  The  wife  has  even 

1  64  Wis.,  253.  -  4  Band,  662.  3  69  Wis,,  419.  104  111.,  126.  2  Term,  ch.,  1.  7 
Hill,  N.  Y.,  207.  2  Johns,  ch.,  391.  4  Des.,  183.  Clarke,  151.  15111.,  145.  1  Paige, 
274.  4  Lltt.,  251.  36  Ala.,  391.  5  Dana,  499.  Clarke,  151.  7  Grant  ch.,109.  79 
Ind.,  558. 


306  MABRIAGE  AND  DIVOKCE. 

been  allowed  to  travel  for  her  health,  at  the  husband's  ex- 
pense.1 

There  is  no  settled  rule  in  this  country  as  to  the  amount 
or  rate  to  be  allowed  for  alimony.2 

Conflict  of  authority  as  to  whether  remarrying  stops  ali- 
mony.3 Probably  does  not  unless  second  husband  was  amply 
able  to  support  the  wife.4  As  a  rule,  the  court  cannot  allow 
a  gross  sum  for  alimony,  but  must  allow  current  payments.5 
In  some  States,  however,  statutes  have  authorized  a  gross 
sum.6  I  elsewhere  show,  and  may  mention,  that  an  ex  parte 
divorce,  or  one  where  the  party  was  not  served  or  did  not  ap- 
pear, will  not  authorize  a  decree  for  alimony,  except  to  oper- 
ate on  property  within  the  jurisdiction  of  the  court.7  The 
decree  of  divorce  or  of  nullity  operating  upon  a  matrimonial 
status  is  in  rem,  but  a  decree  whose  terms  require  an  assault 
upon  the  property,  must  be  in  personam,  hence  must  have 
jurisdiction  of  the  person  to  be  charged.  When  the  court 
has  jurisdiction  of  the  person,  either  by  personal  service 
within  the  State  or  by  an  entry  of  appearance,  in  such  case, 
a  decree  for  alimony  may  be  made  which  will  have  exotic  and 
esoteric  force,  and  may  be  enforced  like  any  other  judgment : 
but  when  there  is  no  jurisdiction  of  the  person,  a  decree  of 
alimony,  except  as  aforesaid,  is  a  nullity.  No  alimony, 
except  pendente  lite,  will  be  allowed  for  a  void  marriage,  ex- 
cept by  special  statute,  which  obtains  in  some  States.  It  has 
been  held  that  a  wife  committing  adultery  after  decree,  did 
not  lessen  her  right  to  the  continued  payment  of  the  ali- 
mony.8 

Where  an  appeal  is  taken,  the  alimony  is  continued.  If 
a  wife  is  living  in  a  state  of  adultery  with  a  paramour,  no 
alimony  will  be  allowed  her. 

The  method  devised  in  order  to  determine  the  amount  of 
the  alimony,  is  to  make  a  reference  to  a  master  to  take 

i  4  Sandf.  ch,.  373.  2  2  Barb,  ch.,72.  3  43  0.  St..  499.  10  Gray,  222.  «  7 
Bradw.,  524.  24  Ark.,  522.  &  10  C.  B.  Green,  548.  144  Mass.,  278.  7  Dana,  181. 
6  6  Har.  &  J.,  485.  4  Hen.  &  Munf.,  507.  47  Vt.,  667.  7  48  Ind.,  200.  49  lad., 
386.  8  4  Hayw.,  75.  3  Halst.  Chy.,  98.  23  How.  Pr.,  189.  8  Bosw.,  640. 


ALIMONY.  307 

proofs  and  report  findings.     The  court  will  give  effect  to  the 
master's  report,  unless  it  is  very  objectionable  or  excessive. 

The  extra-territorial  effect  of  a  decree  for  alimony  is  de- 
nied in  the  following  terms,  by  Judge  Cooley :  "  *  in  di- 
vorce cases,  no  more  than  in  any  other,  can  the  court  make 
a  decree  for  the  payment  of  money  by  a  defendant  not  served 
with  process,  and  not  appearing  in  the  case,  which  shall  be 
binding  on  him,  personally.  It  must  follow  in  such  a  case, 
that  the  wife,  when  complainant,  cannot  obtain  a  valid  de- 
cree for  alimony,  nor  a  valid  judgment  for  costs.  If  the  de- 
fendant had  property  within  the  State,  it  would  be  competent 
to  provide  by  law  for  the  seizure  and  appropriation  of  such 
property  under  the  decree  of  the  court,  to  the  use  of  the 
complainant,  but  the  legal  tribunals  elsewhere,  would  not 
recognize  a  decree  for  alimony  or  costs,  not  based  on  person- 
al service  or  appearance.  The  remedy  of  the  complainant 
must  generally,  in  these  cases,  be  confined  to  a  dissolution  of 
the  marriage,  with  the  incidental  benefits  springing  therefrom, 
and  to  an  order  for  the  custody  of  the  children,  if  within 
the  State."1  A  less  allowance  is  authorized  as  temporary, 
than  for  permanent,  alimony,  because  the  merits  of  the  case 
cannot  be  known  in  time  for  the  award  of  the  former ;  and 
besides  (as  once  stated  by  a  court),  "the  allowance  should  be 
made  with  some  reference  to  her  former  comfortable  state, 
yet  with  moderation,  because  the  bringing  of  the  suit  itself 
casts  on  her  a  shadow  which  should  cause  her  to  live  in  com- 
parative seclusion,  and  consequent  economy,  until  it  is  re- 
moved." "On  that  account,"  said  he,  "a  comparatively 
small  allotment  is  given  during  the  pendency  of  a  suit."  An 
allowance  of  one-fifth  of  the  joint  income,  first  deducting 
the  wife's  separate  income,  has  been  sometimes  adopted,  but 
generally  the  allowance  is  according  to  the  situation  and  cir- 
cumstances of  each  specific  case. 

'Const.  Lim.,  p.  406.  47  Vt.,  667.  48  Ind.,  200.  49  Ind.,  386.  21  Ind.,  331. 
11  How.  U.  S.,  165.  17  Wall,  521,  1  Johns.,  424.  9  Greenl.,  140.  4  Barb.,  295. 
1  Gill  &  J.  463.  7  Dana,  181.  '21  Ind.,  321.  76  N.  Y.,  78.  101  N.  Y.,  23.  108 
N.  Y.,  628.  15  Johns.,  12.  6  Wend,,  447.  33  Wend.,  407.  12  Barb.,  640.  31 
Barb.,  69.  41  N.  Y.,  272.  46  N'  Y-,  30.  42  Barb.,  317. 


308  MARRIAGE  AND  DIVORCE. 

"Suit  money/'  or  "costs,"  is  a  separate  allowance,  and 
so,  also,  is  solicitor's  fees,  and  both  are  allowed  in  addi- 
tion to  alimony ;  but  while  the  tendency  of  the  wife  is  to  ex- 
travagance in  that  particular,  the  practice  of  the  courts  is 
toward  economy,1  and  I  have  known  of  only  ten  per  cent,  to 
be  allowed  of  the  claim  made.  A  motion  for  alimony  pen- 
dente  lite,  should  include  that,  also,  for  the  above.  In  Con- 
necticut it  has  been  held  that  the  allowance  for  alimony  shall 
not  exceed  one-third  of  the  husband's  estate.  In  Louisiana, 
it  is  enacted  by  statute  that  the  alimony  shall  not  exceed 
one-third  of  the  husband's  income ;  and  it  is  further  provided 
that  "the  alimony  shall  be  revocable  in  case  it  should  be- 
come necessary,  and  in  case  the  wife  should  contract  a  sec- 
ond marriage." 

A  husband  is  bound  to  pay  for  the  services  of  his  wife's 
attorney  in  a  suit  for  divorce  against  him,  although  the  di- 
vorce was  refused,  if  the  attorney  had  reasonable  grounds  to 
believe  her  entitled  to  the  divorce.2 

In  fixing  the  amount  to  be  allowed  to  a  wife  for  procuring 
counsel,  only  necessary  litigation  should  be  provided  for. 
Ordinarily,  an  allowance  for  one  attorney  only  is  sufficient.3 

In  Iowa,  Massachusetts,  New  Hampshire,  Oregon,  Vir- 
ginia, Washington  and  West  Virginia,  an  allowance  in  the 
nature  of  alimony  may  be  allowed  to  the  husband,  to  be  paid 
out  of  the  wife's  separate  estate.  The  following  authorities 
assert  the  doctrine  that  courts  of  chancery,  in  the  ordinary 
exercise  of  chancery  jurisdiction,  even  if  there  be  no  statute 
on  the  subject,  will  entertain  a  proceeding  for  alimony,  viz : 
16  Ala.,  440.  38  Gal.,  265.  2  Des.,  45.  4  Des.,  33.  2 
Bland.,  544.  4  Har.  &  McH.,  477.  2  Johns.  Chy.,  391.  3 
Dana,  28.  4  Dana,  308.  4  Lit.,  202.  3  Ala.,  187.4 

93  Mo.,  520.  2  Barb.,  Chy.,  146.  Walker,  Mich.,  421.  »65  Iowa,  285.  351  N. 
Y.,  Sup.  Ct.,  361.  *7.Ben .  M.  424.  1  0.  E.  Green.  162.  4  Band.,  662.  4  H.  &M. 
507.  Wright,  6S2. 


xxxvm. 

CHILDREN. 


The  children  who  are  born  of  a  voidable  marriage  are 
legitimate.  But  if  a  sentence  of  absolute  nullity  is  pro- 
nounced ,  they  are  rendered  illegitimate.  If  it  is  merely  avoided, 
their  status  is  not  disturbed  or  changed.  The  rule  of  com- 
mon marital  law  is,  that  if  a  man  marry  a  woman  who  is 
with  child,  a  presumption  is  created  that  the  child  with  which 
she  is  pregnant,  was  begotten  by  him.  This  presumption  is 
founded  on  the  assumed  acknowledgment  of  paternity  by  the 
fact  of  marriage.  It  may  indeed  be  rebutted,  but  till  over- 
thrown, it  holds  good.  If  the  child  is  born  soon  after  mar- 
riage the  presumption  is  strengthened,  but  if  the  child  is  born 
so  long  after  marriage  that  it  could  not  have  been  visible  or 
apparent  at  the  time  of  marriage,  such  presumption  is  visi- 
bly weakened.1 

A  child  of  an  inchoate  marriage  of  infants  is  illegitimate 
if  the  husband  is  too  young  to  procreate — prima  facie  if  un- 
der fourteen.  In  some  cases  by  statute,  children  of  insane 
persons  are  legitimate,  but  generally  not  so. 

When  there  is  a  prior  marriage  undissolved,  and  then  a 
second  marriage,  it  being  of  course  void,  the  children  of  such 
marriage  are  illegitimate,  nor  are  they  any  more  legitimate, 
by  reason  that  the  second  marriage  was  innocently  con- 
tracted. They  are  made  legitimate,  however,  as  to  the  one 
having  no  disability,  in  many  States.  Most  of  the  States  have 
legislated  on  the  general  subject.  In  Illinois,  children  are 
not  affected,  except  when  they  are  the  product  of  a  second 
marriage  while  there  is  a  prior  subsisting  one.  In  Indiana 

1  3  Allen,  "605. 


310  MAKRIAGE  AND  DIVORCE. 

they  are  not  affected  by  anything  except  that  in  case  they 
are  the  product  of  a  second  marriage,  while  the  first  or  a 
prior  marriage  is  valid  and  was  known  to  the  mother  both  to 
exist  and  to  be  valid,  then,  and  only  in  such  case,  are  they 
illegitimate.  In  Georgia  the  only  children  of  a  marriage  who 
are  illegitimate,  are  those  born  when  the  pregnancy  existed 
before  marriage,  and  not  acknowledged  by  the  father.  In 
Dakota  the  legitimacy  of  children  is  not  affected  except  that, 
when  adultery  of  the  wife  is  charged  and  substantiated,  it  is 
left  for  the  court  to  decide  if  any  children  who  may  be  con- 
ceived after  the  adultery  existed,  were  spurious  or  the  gen- 
uine children  of  the  husband ;  and,  in  such  inquiry,  the  ab- 
sence of  the  husband  at  the  time  of  conception,  or  his  non- 
access  to  the  wife,  or  his  inability  from  illness  to  procreate, 
the  likeness  or  non-likeness  of  the  child,  or  any  other  apt 
circumstance,  may  be  considered.  In  the  District  of  Colum- 
bia, children  are  legitimate  in  all  cases,  even  in  case  of  a 
prior  marriage,  if  the  second  marriage  was  contracted  in 
good  faith,  and  without  knowledge  of  the  prior  marriage.  In 
Michigan,  a  divorce  for  adultery  does  not  affect  the  legitimacy 
of  the  children,  but,  if  questioned,  may  be  determined  on 
proofs.  The  legitimacy  of  those  begotten  before  proofs,  pre- 
sumed. In  case  of  a  dissolution  of  marriage  by  reason  of 
non-age,  insanity  or  idiocy,  the  issue  of  the  party  capable 
of  contracting,  is  legitimatized.  In  case  of  prior  marriage, 
if  the  second  marriage  was  entered  into  in  good  faith, 
the  heirs  of  the  party  who  was  capable  of  entering  into 
the  marriage  contract  are  legitimate.  In  Massachusetts  a 
divorce  for  adultery  of  the  wife  will  not  affect  the  legiti- 
macy of  the  children,  but  if  questioned,  may  be  heard  on 
proofs.  In  Maine,  the  issue  of  a  marriage,  void  on  account 
of  consanguinity  or  affinity,  or  by  reason  that  one  of  the 
parties  was  a  negro,  mulatto  or  Indian,  are  illegitimate, 
but  of  a  marriage  dissolved  by  reason  of  the  idiocy  or  in- 
sanity of  one  of  the  parties,  the  issue  of  the  one  capable 
of  consenting,  is  legitimate.  And  in  a  bigamous  marriage, 


CHILDREN.  311 

though  in  good  faith  and  without  knowledge,  the  issue  be- 
gotten before  suit  brought,  is  legitimate  of  the  one  capable 
of  contracting.  In  Pennsylvania,  children  of  a  valid  mar- 
riage, born  during  marriage,  continue  legitimate.  In  Ohio, 
the  granting  of  a  divorce  and  the  dissolution  of  a  mar- 
riage, shall  not  affect  the  legitimacy  of  the  children.  In 
Tennessee,  the  dissolution  of  a  marriage  is  held  not  to  af- 
fect the  legitimacy  of  the  children.  In  North  Carolina,  the 
children  are  not  illegitimate  by  the  decree  of  divorce. 

In  New  York,  children  born  or  begotten  before  final  judg- 
ment, in  case  of  an  annulment  of  marriage  for  prior  mar- 
riage, where  it  was  contracted  in  good  faith  and  without 
knowledge  of  the  former  marriage,  are  the  legitimate  issue  of 
the  party  who  was  competent  to  contract.  "A  child  of  a 
marriage,  -which  is  annulled  on  the  ground  of  the  idiocy  or 
lunacy  of  one  of  its  parents,  is  deemed,  for  all  purposes,  the 
legitimate  child  of  the  party  who  is  of  sound  mind."  Chil- 
dren of  a  marriage  annulled  for  force,  fraud,  or  duress, 
awarded  to  the  innocent  party,  unless  totally  unfit.  When  an 
action  for  divorce  is  brought  by  the  wife,  the  legitimacy  of  any 
child  of  the  marriage  born  or  begotten  before  the  commence- 
ment of  the  suit  is  not  affected  by  the  judgment  dissolving  the 
marriage ;  when  the  action  is  brought  by  the  husband,  the 
legitimacy  of  the  children,  brought  before  the  commission  of 
the  offence  charged,is  not  affected,  but,  as  to  any  other,  the 
legitimacy  may  be  proved ;  in  absence  of  proof,  legitimacy  of 
all  begotten  before  commencement  of  suit,  is  presumed.  In  New 
Jersey,  the  children  of  a  marriage,  where  there  is  a  prior  sub- 
sisting one,  are  illegitimate,  but,  in  a  divorce  for  adultery  or 
desertion,  the  children  are  legitimate.  In  Vermont,  a  nullity 
on  account  of  consanguinity,  or  affinity,  issue  illegitimate. 
Children  of  a  marriage  annulled  for  lunacy  or  idiocy,  are  legiti- 
mate issue  of  the  sound  party.  If  there  be  issue  of  a  marriage 
annulled  for  force  or  fraud,  they  shall  go  to  innocent  party, 
and  guilty  one  may  be  made  to  pay  for  their  support.  Court 
may  change  name  of  minor  children  of  divorced  parties. 


MAKRIAGE  AND  DIVORCE. 

In  Texas,  a  divorce  shall  not  affect  the  legitimacy  of 
children.  In  Wyoming,  a  divorce  for  adultery  of  wife  shall 
not  affect  the  "legitimacy  of  children,  but  such  legitimacy 
may  be  contested ;  but  such  as  are  begotten  before  commence- 
ment of  suit,  presumed  legitimate,  till  contrary  be  shown. 
Upon  dissolution  of  marriage  for  non-age,  idiocy  or  insanity, 
issue  legitimate  of  the  sound  party ;  in  case  of  non-age,  then 
of  the  eldest  parent;  in  case  of  marriage  dissolved  by  reason 
of  a  prior  marriage,  if  contracted  in  good  faith,  the  issue  born 
or  begotten  before  commencement  of  suit,  presumed  to  be 
legitimate  issue  of  party  capable  of  contracting ;  decree  of 
nullity  on  account  of  consanguinity,  issue  deemed  illegitimate. 

In  Nebraska,  legitimacy  of  children,  in  case  of  adultery  of 
the  wife,  may  be  questioned  and  determined  on  proof,  but  all 
begotten  before  suit  brought,  presumed  legitimate  till  con- 
trary shown.  Upon  dissolution  of  marriage  for  non-age,  in- 
sanity, or  idiocy,  the  issue  will  be  legitimate  of  parent  capable 
of  contracting ;  when  a  marriage  is  dissolved  on  account  of 
a  prior  marriage  of  either,  and  it  shall  appear  that  the  second 
marriage  was  contracted  in  good  faith,  and  with  the  full  belief 
of  the  parties  that  the  former  wife  or  husband  was  dead,  the  fact 
shall  be  stated  in  the  decree  of  divorce  or  nullity,  and  the  issue 
of  the  second  marriage  born  or  begotten  before  the  commence- 
ment of  the  suit,  shall  be  deemed  to  be  the  legitimate  issue  of 
the  parent  who,  at  the  time  of  the  marriage,  was  capable  of 
contracting."  All  issue  of  a  marriage  dissolved  on  account 
of  consanguinity,  or  miscegenation,  is  illegitimate.  In 
Montana,  the  legitimacy  of  children  not  affected  by  a  decree 
of  divorce.  In  Mississippi,  a  decree  of  divorce  shall  not 
render  the  children  illegitimate ;  but,  in  case  of  prior  mar- 
riage, they  shall  be  illegitimate.  In  New  Hampshire,  no  de- 
cree of  divorce  shall  affect  the  legitimacy  of  a  child  born  or 
begotten  in  lawful  matrimony,  unless  it  shall  be  so  expressed 
in  the  decree.  In  Delaware,  the  issue  of  a  marriage  an- 
nulled for  consanguinity,  affinity,  miscegenation,  or  where  a 
prior  marriage  existed,  are  illegitimate,  except  that,  in  the 


CHILDREN.  313 

latter  case,  they  shall  be  legitimate  if  the  second  marriage 
was  contracted  without  knowledge,  and  bona  fide ;  and,  in 
that  case,  legitimate  of  the  competent  party  to  contract.  In 
all  other  cases,  legitimacy  not  affected.  In  Idaho,  "when  a 
marriage  is  annulled  on  the  ground  that  a  former  husband 
or  wife  is  living,  or,  on  the  ground  of  insanity,  children,  be- 
gotten before  the  judgment,  are  legitimate,  and  succeed  to  the 
estate  of  both  parents."  When  annulled  on  the  ground  of 
force,  or  fraud,  the  innocent  parent  gets  custody,  and 
guilty  party  must  provide  for  education.  "When  a  divorce 
is  granted  for  the  adultery  of  the  wife,  the  legitimacy  of 
children  begotten  of  her  before  the  commission  of  the 
adultery  is  not  affected ;  but  the  legitimacy  of  other  children 
of  the  wife  may  be  determined  by  the  court  upon  the  evidence 
in  the  case.  In  Alabama,  when  a  divorce  is  granted  for  preg- 
nancy of  wife  before  marriage,  the  issue  is  illegitimate.  In 
Arizona,  a  divorce  does  not  affect  the  legitimacy  of  children. 

In  California,  where  a  marriage  is  annulled  on  the  ground 
that  a  former  husband  or  wife  was  living,  or  on  the  ground  of 
insanity,  children  begotten  before  the  judgment  are  legitimate, 
and  succeed  to  the  estate  of  both  parents.  In  a  decree  for 
adultery  of  husband,  legitimacy  of  children  begotten  before 
commencement  of  suit,  not  affected ;  for  adultery  of  wife,  legiti- 
macy of  children  begotten  before  commission  of  offence,  not 
affected,  but  legitimacy  of  other  children  may  be  inquired  into. 
"  All  children  of  a  woman  who  has  been  married,  born  within 
ten  months  after  the  dissolution  of  the  marriage, are  presumed 
to  be  legitimate  children  of  that  marriage. "  In  Colorado, 
legitimacy  of  children  not  affected  except  in  cases  where  there 
was  a  prior  marriage. 

In  all  other  States,  it  may  be  assumed,  that  the  principles 
enunciated  in  the  caption  obtained.  The  children  of  a  void 
marriage,  whether  so  declared  by  the  court,  or  not,  are  ille- 
gitimate, except  as  to  the  mother,  while  those  born  of  a  mar- 
riage which  is  avoided,  or  of  a  marriage  which  is  dissolved, 
are  legitimate.  Oklahoma  is  the  newest  of  the  territories,  yet 


314  MAKRIAGE  AND  DIVORCE. 

it  has  an  elaborate  divorce  law.  When  a  marriage  is  annulled 
by  reason  of  incapacity,  for  want  of  age,  or  understanding, 
the  children  are  legitimate ;  when  a  marriage  is  annulled  on 
account  of  a  prior  existing  marriage,  all  children,  born  or  be- 
gotten prior  to  the  discovery  of  the  prior  marriage,  if  the 
second  marriage  was  contracted  in  good  faith,  are  legitimate ; 
a  divorce  granted  on'constructive  notice,  by  publication,  may 
be  opened  at  any  future  time,  so  far  as  the  children  are  con- 
cerned, and  a  divorce  annulled  for  consanguinity  or  affinity 
of  parties,  the  children  are  legitimate. 

As  to  the  custody  of  children,  the  general  rules  are,  that, 
other  things  being  equal,  the  husband  is  entitled  to  the 
children,  but  in  case  of  young  children,  especially  girls,  who 
need  a  mother's  care,  unless  she  bean  adulteress,  drunkard, 
insane,  or  otherwise  unfit,  she  will  be  entitled ;  grown  children 
will  be  divided  equitably,  if  both  parties  are  suitable. 

When  the  divorce  is  granted  for  the  wife's  adultery,  the 
husband,  ordinarily,  will  be  given  custody  of  the  children.1 

When  a  separation  is  decreed,  the  father  has  the  legal 
right  to  the  possession  of  the  child,  unless  he  has  waived  it 
or  lost  it  by  misconduct.2  It  does  not  follow  that  the  party 
prevailing  shall  in  all  cases,  have  care  of  the  children ;  the 
court  in  its  discretion,  consulting  the  best  interest  of  the 
children,  may  assign  their  custody  to  the  other  parent,  or, 
even  in  some  cases,  to  collateral  relatives,  or  to  the  grandpar- 
ents.3 The  interest  of  the  child  is  the  leading,  if  not  the  para- 
mount, consideration  in  determining  in  whose  custody  a  child 
shall  be  placed  after  a  divorce.4 

As  between  parents  living  in  voluntary  separation,  the 
court  looks  at  the  character  of  the  parents  and  their  re- 
spective merits  in  regard  to  the  separation,  and  also,  espec- 
ially, to  the  welfare  of  the  children.  The  court  prefers  the 
father,5 

The  father's  right  to  the  possession,  care  .and  control  of 
his  minor  child  is  paramount  if  the  child  be  of  such  an  age 

» 17  Abb.  New  Cases,  236.    "  u  ni..  43.  2  N.  J.,  286.    1  Carter,  171.  24  Barb., 
521.    «  28  Miss.,  91.  4  14  Cal.,  512.  5  35  Barb.,   85. 


CHILDBED.  315 

that  it  can  without  injury  or  violence   to    nature   be  with- 
drawn from  maternal  nursing.1 

A  decree  of  divorce  giving  the  custody  of  the  children 
to  the  mother  because  of  the  unfitness  of  the  father,  and 
allowing  a  sum  in  gross  as  her  alimony,  does  not  impose 
the  obligation  of  the  father  to  support  them.2  As  a  gen- 
eral rule  the  father  is  entitled  to  the  custody  of  the  infant 
child.3 

The  tendency  of  the  law  is  to  legitimize  children  who 
would  otherwise  be  bastards  when  it  is  possible :  and,  ac- 
cordingly, in  California,  Dakota,  Florida,  Idaho,  Iowa,  Maine, 
Michigan,  Minnesota,  Montana,  Nevada,  Oregon,  Pennsylva- 
nia and  Washington,  illegitimate  children  are  legitimized  by 
the  marriage  of  parents;  and  when,  in  addition,  they  are 
acknowledged  by  the  father,  they  are  legitimized  in  Alabama, 
Arizona,  Arkansas,  Colorado,  Connecticut,  Georgia,  Illinois, 
Indiana,  Kentucky,  Louisiana,  Maryland,  Massachusets,  Mis- 
sissippi, Missouri,  Nebraska,  New  Hampshire,  New  Mexico, 
Ohio,  Texas,  Vermont,  Virginia,  West  Virginia,  Wisconsin 
and  Wyoming. 

The  children  of  parents  who  are  divorced,  do  not  lose 
their  standing  as  heirs  at  law  of  both  of  their  parents.  If  a 
parent  is  divorced  by  a  valid  divorce,  and  forms  a  new  alliance, 
and  has  other  children  and  dies,  the  children  of  both  mar- 
riage share  alike  pari  passu,  in  like  manner  as  if  the  first  wife 
died ;  but  if  the  first  divorce  was  void  or  fraudulent  and 
the  parent  marries  again,  then  the  issue  of  the  second  mar- 
riage are  not  legitimate  heirs,  and  in  a  contest  between  the 
first  children,  or  even  collaterals,  and  the  children  of  the  sec- 
ond marriage,  the  former  will  prevail.  The  process  would 
be  for  the  genuine  heirs  to  proceed  to  assert  their  heirship 
in  any  apt  way,  as  ejectment,  bill  to  remove  cloud,  or  oth- 
erwise, and  if  the  spurious  decree  was  set  up  to  their  pre- 
judice, then  to  make  and  enforce  an  issue  on  its  invalidity. 

i  4   Greene,  216.    2  47  111.  290.    s  1  Bush.,  15. 


XXXIX. 
PKOPEKTY  EIGHTS. 


A  divorce  ends  all  rights,  not  previously  vested.  Interests 
which  might  vest  in  time,  upon  a  continuance  of  the  mar- 
riage relation,  are  gone.  A  wife  divorced  has  no  right  of 
dower  in  his  property;  a  husband  divorced  has  no  right  by 
the  curtesy  in  her  lands,  unless  the  statute  authorizing  the 
divorce  specially  confers  such  right ;  the  general  rule  being, 
that  no  dower  accrues  to  a  woman  unless  she  was  the  wife  of 
the  party  at  his  death.  She  is  not  entitled  to  it  if  a  divorce 
has  occurred  between  the  parties,  in  absence  of  a  statute.1 
In  some  cases,  statutes  provide,  that  when  the  wife  is  the  in- 
nocent party  in  a  divorce  decree,  she  may  have  dower,  to  be 
admeasured  at  the  date  of  decree,  as  if  the  husband  was  dead. 
And  a  husband's  rights  the  same.  At  the  time  of  marriage 
he  becomes  tenant  by  the  curtesy  initiate,  and  at  the  death 
of  the  wife  he  becomes  tenant  by  the  curtesy  consummate ; 
but  if  divorced,  his  curtesy  never  becomes  consummate,  not 
being  the  husband,  and  her  lands  are  divested  of  his  estate  by 
curtesy  at  time  of  divorce,  and  become  her  own  absolutely. 
So  also  the  husband  has  no  rights  to  the  wife's  choses  in 
action  or  personal  property,  after  divorce. 

A  decree  obtained  by  fraud,  is  void,  and  changes  no  status 
of  persons  or  of  property,  but  it  may  not  be  known  if  it  was 
obtained  by  fraud  till  so  decided  by  a  proper  court ;  usually  if 
adjudged  void,  it  becomes  void  ab  initio,  but  some  statutes 
have  held  that  a  decree  may  only  be  void  from  date  of  decree. 
This  is  a  solecism  in  jurisprudence  which  probably  will  not 

1  125  U.  S.,216. 


PEOPEETY  EIGHTS.  317 

stand,  but  is  the  law  in  some  jurisdictions  at  present.  The 
phrase  "void"  signifies  emptiness,  or  nothing,  or,  as  has  some- 
times been  stated,  a  void  decree  is  no  decree  at  all. 

In  all  such  cases,  the  wife  (or  husband)  and  children  of 
a  marriage  so  assumed  to  be  annulled  by  a  void  decree  still 
remain,  despite  such  decree,  the  lawful  wife  (or  husband) 
and  true  children  and  heirs  of  the  hero  of  the  fraudulent  di- 
vorce, nor  does  such  decree  gather  strength  by  efflux  of  time. 
A  fraudulent  decree  is  no  stronger  after  the  lapse  of  twenty 
years,  than  one  day.  The  minor  children,  as  a  rule,  are 
without  the  terms  of  all  statutes  of  limitation,  but  laches 
may  be  imputed  to  the  wife,  and  also  to  third  persons  who 
may  seek  to  have  a  void  decree  of  divorce  so  adjudged,  or  to 
be  shorn  of  its  force  by  the  courts :  and  even  though  a  de- 
cree may  be  abstractly  void,  yet  courts  may  refuse  aid  on 
account  of  the  negligence  of  the  parties  to  assert  their 
rights  in  time. 

Commenting  upon  a  case  involving  this  principle,  the 
Supreme  court  of  Alabama  said  in  Turner  vs.  Turner,  44 
Ala.,  437 :  "The  Indiana  divorce  *  *  *  may 
protect  him  upon  a  charge  of  bigamy,  should  he  marry  again 
in  this  State.  But  without  stopping  to  inquire  whether  it 
was  obtained  by  him  by  fraud,  and  therefore  is  vicious  on 
that  account  or  not,  it  certainly  cannot  affect  the  rights  of 
complainant,  except  her  right  in  the  husband,  as  husband. 
But  it  does  not  settle  his  right  to  alimony ;  it  does  not  settle 
her  right  to  dower  in  his  lands,  and  her  statutory  right  to 
distribution  of  his  property  in  this  State,  in  the  event  she 
should  survive  him,  nor  any  other  interest  of  a  pecuniary 
character  she  may  have  against  him. " 

On  a  decree  of  divorce,  the  court  will  inquire  into  waste 
committed  by  the  husband  on  the  wife's  land  since  the 
petition,  and  compensate  her  for  it  out  of  the  husband's 
estate.1 

A  divorce  restoring  to  the  wife  her  lands,  etc,  divests 
judgment  liens  created  by  the  husband,  and  annuls  sales  made 
under  such  liens.2 

i  Harr.  Del.,  516.    2  4  Harr.  Del.,  440. 


318  MABKIAGE  AND  DIVOECE. 

The  rule  of  equity,  which  requires,  upon  the  rescission  of 
a  contract,  that  the  parties  should  be  restored  to  their  origi- 
nal condition,  cannot  be  applied  in  case  of  a  divorce  a 
vinculo  matrimonii.1 

Upon  the  dissolution  of  a  marriage  by  divorce  or  sen- 
tence of  nullity,  for  any  cause  except  adultery  of  the  wife,  she 
is  entitled  to  the  immediate  possession  of  all  her  property  in 
the  same  manner  as  if  her  husband  were  dead.2  Upon  a  di- 
vorce for  husband's  adultery,  all  the  separate  rights  and  choses 
in  action  of  the  wife  which  had  not  been  reduced  to  pos- 
session by  the  husband  before  the  commencement  of  the  suit, 
will  belong  to  the  wife,  discharged  of  the  claims  of  the  hus- 
band in  the  same  manner  as  if  the  marriage  had  been  dis- 
solved by  the  death  of  the  husband.3  Courts  of  equity  in 
suits  for  divorce  or  separation  have  the  power  of  restoring  to 
the  wife  the  whole,  or  a  portion,  of  her  property,  whenever, 
from  the  nature  and  circumstances  of  the  case,  such  a  decree 
would  be  just,  and  may  restrain  the  husband  from  receiving 
gifts  or  legacies  to  her  after  such  divorce  or  separation.4  A 
divorce  obtained  by  a  wife  from  her  husband  places  her  in 
the  same  situation  as  to  her  legal  rights  in  reference  to  prop- 
erty owned  by  her  before  marriage,  or  acquired  by  her  during 
its  continuance,  as  if  she  had  actually  survived  her  hus- 
band.5 In  granting  a  divorce,  the  court  may  make  such  a 
division,  at  least  of  the  community  property,  in  reference  to 
the  condition  of  the  parties  and  the  support  and  education 
of  the  children,  as  may  be  equitable.6 

When  a  husband  obtained  a  decree  of  divorce  from  his 
wife,  on  the  ground  of  her  desertion,  she  was  allowed  to  re- 
tain all  the  estate  of  which  she  was  possessed  at  the  time  of 
her  marriage,  amounting  to  about  $1000,  and  was  decreed 
$750  out  of  her  husband's  estate  of  $12,000.7 

Where,  in  proceedings  to  obtain  a  divorce,  the  question  of 
the  rights  of  the  parties  to  the  common  property  does  not 

1  15  B.  Mon.,  49.  2  Walk.  Mich.,  309.  5  Miss.,  109.  27  Miss.,  630.  8  10  Paige, 
420.  4  4  Barb.,  295.  2  Barb.,  377.  6  Paige,  366.  4  Barb.,  295.  5  2  Ashm.,  Pa., 
455.  6  15  Tex.,  18.  7  6  B.  Mon.,  496. 


PEOPEETY  EIGHTS.  319 

come  before  the  court,  and  the  decree  is  for  divorce  simply, 
neither  of  the  parties  will  be  concluded  thereby  in  respect  of 
their  claims,  otherwise  existing,  to  such  property.1  Where  a 
divorce  is  granted  on  the  ground  of  extreme  cruelty,  the 
guilty  party  is  entitled  to  receive  only  so  much  of  the  com- 
munity property  as  the  court  may  deem  just  under  the  facts 
of  the  case.2  Upon  granting  a  divorce,  whether  on  account  of 
the  fault  of  the  wife  or  the  husband,  the  court  has  power  to 
award  to  her  the  possession  of  the  homestead.3  Though  the 
District  court  has  authority  upon  granting  a  divorce  to  make 
partition  of  community  property,  yet,  if  it  is  not  done,  the  di- 
vorce does  not  preclude  the  woman  from  afterward  bringing 
suit  to  recover  her  interest  in  the  property.4  Although  a  wife, 
upon  obtaining  a  divorce  from  her  husband  for  his  miscon- 
duct, is  entitled  to  be  placed  as  regards  her  separate  prop- 
erty, in  the  same  position,  as  nearly  as  may  be,  as  before  the 
marriage,  he  cannot  be  compelled  to  account  for  rents  of  her 
separate  property  received  by  him  during  coverture.5  The  lex 
loci,  which  is  to  govern  married  persons,  and  by  which  the 
contract  is  to  be  annulled,  is  not  the  law  of  the  place  where 
the  contract  was  made,  but  where  it  exists  for  the  time  where 
the  parties  have  their  domicil,  and  where  they  are  amenable 
for  any  violation  of  their  duties  in  that  relation.6 

The  divorce  obtained  by  the  husband  of  appellant  in  In- 
diana determined  the  status  of  the  parties,  but  does  not,  by 
its  own  force,  affect  the  right  to  property  in  Kentucky. 

The  divorce  obtained  by  the  husband  from  the  wife  can 
only  affect  rights  to  property  in  the  State  where  granted.7 

A  decree  dissolving  a  marriage  for  a  cause  not  regarded 
as  adequate  by  the  laws  of  New  York,  rendered  in  another 
State  by  a  court  having  jurisdiction  of  the  subject  and  the 
parties,  in  an  action  brought  by  the  husband,  will  not  de- 
prive the  wife  of  her  then  existing  dower  rights  in  lands  in 
New  York,  at  least  in  the  absence  of  evidence  that  under 

1  39  Cal.,  157-    2  47  Cal.,  62.    3  14  Kan.,  342.    *  48  Tex.,  269.    5  19  Fla.,  341. 
6  45  N.  Y.,  544.    Story  Conf.  Laws,  230.    7  80  Ky.,  353. 


320  MAEKIAGE  AND  DIVORCE. 

the  laws  of  the  State  where  it  was  rendered,  it  has  that 
effect.1 

As  to  whether  even  with  such  evidence,  it  will  have  that 
effect,  it  is  doubtful. 

A  wife  who  is  divorced  from  her  husband  for  her  own 
fault  or  misconduct,  forfeits  all  her  dower  or  homestead  rights, 
regardless  of  the  place  where  the  divorce  was  granted.  This 
was  a  case  of  a  divorce  rendered  in  Kansas,  while  the  prop- 
erty was  located  in  Illinois.2 

Where  a  divorce  was  granted  to  the  husband  for  the 
voluntary  abandonment  of  the  wife,  dower  to  the  wife  is 
barred.3 

By  the  statute  in  Kentucky  a  divorce  bars  all  claim  to 
curtesy  or  dower.  This  applies  as  well  to  that  conveyed 
during  the  marriage  as  to  that  of  which  he  died  possessed.4 

In  a  case  in  Kentucky,  the  lower  court  allowed  an  abso- 
lute divorce,  and  also  allowed  the  wife  to  hold  all  property 
owned  by  her  at  the  time  of  the  marriage.  Keview  court 
said:  "But  the  decree  is  not  for  alimony,  and  if  it  had 
been  such,  it  would  have  been  erroneous,  because  it  does 
not  secure  to  the  wife,  as  wife,  an  annuity  or  other  per- 
sonal right  to  maintenance,  but  it  purports  to  confirm  to 
her  as  a  feme  sole  the  absolute  title  to  property,  which 
should  never  be  done  in  case  of  mere  alimony."5 

In  another  case  in  Kentucky,  a  fee  simple  of  land  was 
granted  by  the  court  as  alimony.  Held,  not  void,  but  erro- 
neous.6 In  a  case  in  North  Carolina  it  was  held  that  when 
slaves  were  assigned  the  wife  in  lieu  of  alimony  it  was  not 
an  absolute  gift,  but  a  mere  use,  to  terminate  with  the  death 
of  either.7 

And  a  similar  doctrine  as  to  personal  property  obtains 
in  New  Jersey.8  If  a  wife  sues,  for  divorce  and  prays  that 
certain  real  estate  be  set  apart  for  her  support,  it  will 
create  a  Us  pendens.9 

»  118  N.  Y.,  449.  2  118111.,  257.  3  84  Ala.,  468.  4  83  Ky.,  208.  5  7 Dana, 
187.  *3B.  Mon.,  90,  7  6  Ired.,  293.  8  25  N.  J.  Eq.,  548.  9  20  Nevada,  232. 


PKOPEKTY  EIGHTS.  321 

Where  a  petition  for  divorce,  praying  that  specified  prop- 
erty of  the  husband  be  assigned  to  plaintiff  as  alimony,  is 
endorsed  as  filed  by  the  clerk,  but  is  immediately  taken  from 
the  office  and  no  summons  issued  thereon,  there  is  no  such 
filing  as  is  contemplated  by  the  law  of  Kansas.1 

Where  a  wife,  in  her  petition  for  divorce,  describes  certain 
property  of  the  husband,  and  prays  that  it  may  be  set  apart 
to  her  as  permanent  alimony,  as  provided  by  the  Kansas  stat- 
ute, the  doctrine  of  Us  pendens  applies,  and  any  one  pur- 
chasing the  property,  pending  the  suit,  will  be  bound  by  the 
judgment  subsequently  rendered  thereon,1 

i  Wilkinson  v.  Elliott,  43  Kan.,  590. 


XL. 

DOWEE. 


Dower  is  defined  to  be  that  portion  of  the  lands  or  tene- 
ments of  a  man  which  his  widow  enjoys  during  her  life,  after 
the  death  of  the  husband ;  or  the  portion  which  the  widow 
has  of  the  lands  and  tenements  of  her  husband  after  his  de- 
cease. At  common  law  it  consists  of  a  life  estate  of  all  lands 
owned  by  the  husband  at  any  time  during  coverture,  and  not 
released.  At  common  law,  in  the  absence  of  statute,  it  has 
been  generally  held  that  a  divorce  bars  dower,  and  such  is 
sustained  by  the  great  weight  of  authority  in  most  of  the 
States.  Judge  Gray  held  that  divorce  bars  dower  unless  the 
same  is  preserved  by  the  lexrei  sitae.1  And  it  has  been  held 
similarly  in  27  Me.,  212.  6  Watts  &  S.,  85.  2  Greene  (Iowa), 
604.  6  Ind.,  229.  4  Wright's  Pa.,  157.  11  Wis.,  126.  10 
Ohio  St.,  596.  9  C.  E.Greene,  440.  81  111.,  405.  55 Pa.  St., 
375.  11  Cart.,  233.  8  Blackf.,  218.  6  Port.,  229.  20  Ohio 
St.,  454.  2  Edw.  Chy.,  592.  24  Wend.,  193.  23  Ind.,  71. 
In  a  case  in  Oregon  it  was  held  that  the  matter  of  dower 
must  be  adjudged  in  the  divorce  suit,  and  that  it  could  not 
be  done  after  a  decree  of  divorce.2  But  the  more  logical  doc- 
trine is  to  file  a  bill  for  an  admeasurement  of  dower,  when 
the  statute  authorizes  it,  after  the  divorce  is  allowed,  as  if 
the  husband  had  died.3 

The  lex  rei  sitae  governs  as  to  dower,4  and  in  a  case  which 
arose  in  the  United  States  court,  where  a  decree  of  divorce 
was  obtained  in  California,  where  dower  was  allowed  by  stat- 
ute, and  the  dower  right  was  sought  to  be  enforced  in  Oregon, 

»111  U.  S.,  523.  24  Ore.,  30.  3  55  Me.,  370.  13  Mass.,  231.  *  Story  Conf.  Laws,  380. 


DOWER.  323 

where  it  was  not  allowed  by  statute,  it  was  denied.1  A  bill 
to  admeasure  dower,  where  it  is  authorized,  can  be  brought 
at  any  time  after  a  decree  of  divorce,  without  waiting  for  the 
death  of  the  husband.  It  will  be  of  such  lands  only  as  he 
was  seized  of  during  the  coverture.  The  bill  will  lie  either  be- 
fore or  after  the  death  of  the  husband. 

In  a  case  in  Maine,  it  was  held  that,  where  a  husband  had 
deserted  his  wife  in  Maine,  and  went  to  North  Corolina,  and 
the  wife  to  Rhode  Island,  and  the  wife  obtained  a  divorce  in 
Rhode  Island  for  adultery  of  the  husband  committed  in 
North  Carolina,  the  wife  had  dower  in  the  husband's  lands 
in  Maine.2 

In  an  application  for  dower  in  Ohio,  the  husband  got  a 
divorce  from  his  wife  in  Kentucky,  but  the  court  in  Ohio  al- 
lowed dower.3 

In  a  case  in  New  York,  the  court  denied  dower,4  but  the 
Court  of  Appeals  reversed  it,  saying:  "In  respect  to  the  hus- 
band's property,  her  rights  are  not  changed.  She  is  still  en- 
titled to  a  support  while  he  lives,  and  to  dower  after  his 
death.  The  children  will  still  inherit  as  heirs-at-law,  and 
when  they  inherit,  she  may  be  endowed.  The  only  difference 
is,  they  inherit  the  lands  not  devised  of  which  the  father  at 
time  of  death  was  seized,  while  she  is  endowed  of  all  the  lands 
of  which  her  husband  was  seized  at  any  time  during  cover- 
ture.5 

In  Kentucky,  the  statutes  provide  that,  where  there  is  a 
divorce,  it  bars  any  recovery  of  dower.  In  Indiana,  the 
statute  allows  dower  in  such  case.  Held,  in  Kentucky,  that 
a  divorce  granted  in  Indiana  bars  the  recovery  of  dower  of 
the  husband's  lands  in  Kentucky,  because  the  bar  of  the 
statute  extends  to  any  valid  divorce,  no  matter  where 
granted.6 

In  New  York,  it  is  held  that  a  decree  of  divorce  for  a 
cause  not  adequate  in  New  York,  granted  by  an  Illinois 

*  6  Sawy.,  473.     2  9  Me.,  140.     3  10  Ohio,  27.     «  4  Barb.,  192.     5  4  Comst.,  109. 
6  80  Ky.,  353. 


324  MAKEIAGE  AND  DIVOKCE. 

court  having  jurisdiction  of  the  subject  matter  and  parties, 
in  a  suit  by  the  husband,  will  not  bar  dower  in  New  York.1 

The  statute  of  Missouri,  barring  wife's  claim  for  dower  after 
divorce  granted  for  her  fault,  applies  to  all  divorces  whether 
obtained  in  this,  or  another  State,  and  whether  obtained  on 
personal  service,  or  by  publication.2 

The  general  rule  is,  that  a  limited  divorce  has  no  effect 
upon  dower,  but  that  an  absolute  divorce  terminates  it. 

Lord  Coke  states  it  thus :  "It  is  necessary  that  the  mar- 
riage do  continue :  for  if  that  be  dissolved,  the  dower  ceaseth. 
But  this  is  to  be  understood,  where  the 

husband  and  wife  are  divorced  a  vinculo  matrimonii  *  *  * 
and  not  a  mensa  et  thoro  only."3 

The  reason  is  strictly  logical ;  dower  is  a  provision,  made 
by  the  law,  for  a  support  to  a  widow  after  the  husband's 
death,  and  if  she  be  divorced,  she  is  not  his  widow :  hence 
the  reason  for  the  rule  ceases,  but  in  this  country,  the  rule 
is  trenched  upon  and  sometimes  wholly  changed  by  statute, 
where  the  husband  is  the  guilty  party,  and  she  is  allowed 
dower,  sometimes  immediately  upon  rendition  of  the  decree, 
and  sometimes  after  death. 

In  case  she  is  entitled  to  dower  immediately,  the  same 
proceedings  are  had  as  if  the  husband  was  dead.  It  can- 
not be  awarded  by  decree  in  the  divorce  suit,  but  demand 
must  be  made,  and  thereafter  she  may  bring  her  suit  for 
admeasurement  of  dower;  and  in  case  of  death,  the  same  pro- 
ceedings are  had  as  if  there  had  been  no  divorce.4 

Like  other  cases  of  dower,  the  wife  will  be  entitled  to 
dower  in  lands  aliened  during  coverture  as  to  those  of  which 
the  husband  was  seized  at  death.5  The  courts  sometimes 
find  difficulty  in  applying  the  new  rule,  for  a  man  divorced  is 
liable  to  leave  more  than  one  widow — he  might  leave  four, 
in  which  case,  it  would  be  mathematically  impossible  to 
award  dower  to  all. 

The  Supreme  court  of  Alabama  was  brought  face  to  face 

1 118  N.  Y.,  549.   2  57  Mo.,  200.  3  Co.  Litt.,  32  a.    4  13  Mass.,  231.  55  Me.,  370. 
69  Greenl.,  140.    14  Mass.,  219. 


DOWEE.  325 

with  this  problem,  and  in  Hinsen  v.  Bush,  84  Ala.,  368,  was 
obliged  to  expressly  overrule  Williams  v.  Hale,  71  Ala.,  83,  in 
order  to  escape  from  a  judicial  dilemma  :  the  over-ruled  case, 
allowing  dower  (there  being  no  survivors,  but  the  divorced 
wife) ;  and  the  later  case  denying  dower,  there  being  a  legal 
wife,  as  well  as  a  divorced  one. 

If  both  parties  are  guilty  of  misconduct,  the  wife  will  be 
barred  of  dower.  The  question  of  dower  is  decided,  not  by 
the  Icxfori,  (when  the  land  is  not  in  the  divorced  jurisdiction) 
but  by  the  lex  loci  rei  sitae.  In  Kentucky  there  is  a  statute, 
which  bars  dower  in  cases  of  absolute  divorce ;  and  it  was 
held  in  that  State,  that  a  decree  of  divorce  in  Indiana,  for  the 
husband's  fault,  and  which  authorized  dower  in  the  latter 
State,  did  not  authorize  dower  in  land  situated  in  Kentucky.1 

It  is  scarcely  needful  to  state  that  a  foreign  divorce  re- 
garded as  fraudulent  or  invalid,  in  the  State  where  the  land 
is  situated,  will  not  authorize  dower.2 

The  husband's  interest  in  the  wife's  land  by  curtesy  in- 
itiate, or  special  statute,  falls  by  an  absolute  divorce.3 

The  personal  property  of  either  spouse  becomes  his  or  her 
property  at  divorce,  and  all  right  or  claim  of  the  other  ceases 
thereover.  If,  therefore,  a  husband  collects  money  belong- 
ing to  his  wife  after  divorce,  she  may  recover  it  back  in  an  ac- 
tion at  law.  But,  during  coverture,  in  the  absence  of  stat- 
ute changing  the  common  law  rule,  if  the  husband  has  con- 
verted his  wife's  personalty  to  his  own  use,  she  cannot  recover 
it  or  its  value  back.4 

Unless  otherwise  provided  by  local  law,  a  decree  of  di- 
vorce by  a  court  having  jurisdiction  of  the  cause  and  of  the 
parties  *  *  *  puts  an  end  to  all  objections  of  either 
party  to  the  other,  and  to  any  right  which  either  has  acquired 
in  the  other's  property,  except  alimony.5  Accordingly,  it  has 
been  generally  held  that  a  valid  divorce  *  *  *  for  the 
fault  of  either  party,  outs  off  the  wife's  right  of  dower  and  the 

1  80  Ky.,  F3.      2  55  Pa.,  375.     3  27  Gratt.,  599.     4  8  Mass.,  99.  27  Miss.,  630. 
5  10  Mass.,  260.  110  Mass.,  463.  10  Ohio  St.,  596.  20  Ohio  St.,  454.  57  Mo.,  200. 


326  MARRIAGE  AND  DIVORCE. 

husband's  tenancy  by  the  curtesy,  unless  expressly  or  im- 
pliedly  saved  by  statute.1 

Statutes  pretty  widely  in  our  States  have  changed  the  un- 
written law,  where  the  wife  is  the  innocent  party  in  the  di- 
vorce, by  providing  that  she  shall  be  entitled  to  dower,  in 
most  of  the  States,  immediately,  the  same  as  though  the 
husband  was  dead.2 

In  Kentucky  the  statute  expressly  bars  dower  in  a  divorce 
decree.  In  Pennsylvania  and  North  Carolina  dower  expressly 
ceases  on  a  divorce  decree.  If  a  divorce  be  granted  for  the 
adultery  or  imprisonment  for  three  years  of  the  husband,  the 
wife  gets  dower  in  Massachusetts,  Wisconsin,  Minnesota  and 
Oregon.  In  Michigan,  dower  is  saved  if  a  decree  is  granted 
for  the  adultery,  misbehavior,  drunkenness  or  imprisonment 
of  the  husband.  In  Missouri,  Kansas,  Ohio  and  Illinois, 
dower  is  not  barred  if  the  divorce  is  granted  for  the  fault  of 
the  husband.  In  Maine,  it  is  not  lost  if  the  decree  is  ob- 
tained for  the  fault  of  the  husband,  except  it  be  impotence. 
In  Connecticut  dower  is  not  lost  if  the  wife  be  innocent. 
In  Tennessee  and  Arkansas,  wife  cannot  have  dower  if  the 
divorce  was  for  her  fault.  In  District  of  Columbia  the 
court  is  authorized  to  grant  dower  in  its  discretion. 

1  111  U.  S.,  527.  69  Mich.,  158.  63  Mich.,  257.    2  18  Neb.,  395.  114  111.,  375.  46 
Conn.,  15.  59  Me.,  488. 


XLI. 


"VOID,"  "VOIDABLE"  AND  "NULLITY." 


The  word  "  void  "  and  its  significance,  meaning  and  effect 
is  frequently  a  matter  of  difficulty.  Our  most  common  legal 
lexicographer  defines  it  in  a  sentence,  as  "  That  which  has 
no  force  or  effect."1  And,  in  fact,  such  is  the  signification  of 
the  term,  in  popular  parlance.  But  it  has  been  said  that 
"void  does  not  always  imply  entire  nullity,  but  it  is,  in  a  legal 
sense,  subject  to  large  qualifications,  in  view  of  all  the  cir- 
cumstances calling  for  its  application,  and  the  rights  and  in- 
terests to  be  affected  in  a  given  case."2  Again:  "Void, 
in  its  most  unlimited  sense,  implies  an  act  of  no  effect  at  all, 
a  nullity  ab  initio.  When  used  in  a  statute,  in  reference 
to  the  solemn  acts  and  judgments  of  superior  courts,  it 
may  mean  no  more  than  voidable."3  Again:  "Probably  no 
words  are  more  inaccurately  used  in  the  books  than  '  void ' 
and  '  voidable/  "  Statutes  not  infrequently  make  acts  void 
which  the  tenor  of  their  provisions  necessarily  make  void- 
able only.  *  *  *  Whatever  may  be  avoided  may  in  good 
sense  to  this  purpose  be  called  void.  And  the  use  of  the 
term  void  ,  is  not  uncommon  in  the  language  of  statutes 
and  of  courts.  But  in  regard  to  the  consequences  to  third 
persons,  the  distinction  is  highly  important,  because  noth- 
ing can  be  founded  on  what  is  absolutely  void,  whereas, 
from  those  which  are  only  voidable,  fair  titles  may  flow. 
These  terms  have  not  always  been  used  with  nice  discrim- 
ination. Indeed,  in  some  books  there  is  great  want  of 

i  Bouvier  Law  Diet.,  title  Void.    2  50  N.  H.,  538.  3  1  N.  J.  L.,  111. 


328  MARRIAGE  AND  DIVORCE. 

precision  in  the  use  of  some  of  them.1  Again:  "Void  prob- 
ably means  of  no  legal  force — null,  and  incapable  of  con- 
firmation or  ratification."2 

"The  true  distinction  between  "void  "  and    "voidable  " 
acts      *  *     is,  that  the  former  can  always  be  assailed 

in  any  proceeding,  and  the  latter  only  in  a  direct  proceeding."3 
Again,  the  term  "void"  has  not,  at  all  times,  been  used  with 
technical  precision,  nor  restricted  to  its  peculiar  and  limited 
sense,  as  contra- distinguished  from  voidable,  it  being  fre- 
quently introduced  even  by  legal  writers  and  jurists  when 
the  purpose  is  nothing  further  than  to  indicate  that  a  con- 
tract was  invalid,  and  not  binding  in  law.  *  .  *  When- 
ever entire  technical  accuracy  is  required,  the  term  "void" 
can  only  be  properly  applied  to  those  contracts  (or  decrees) 
that  are  of  no  effect  whatever — such  as  are  a  mere  nullity, 
and  are  incapable  of  confirmation  or  ratification."4  Again, 
"many  things  are  called  'void'  which  are  not  absolutely  so, 
and,  as  to  mankind  generally,  are  treated  as  valid.  They 
can  only  be  called  relatively  void."5  And  one  of  our  most 
correct  law  writers  has  said:  " There  is  this  difference  be- 
tween the  words  'void'  and  'voidable  :  void  means  that  an 
instrument  or  transaction  is  so  nugatory  and  ineffectual  that 
nothing  can  cure  it ;  voidable  applies  when  an  imperfection 
or  defect  can  be  cured  by  the  act  or  confirmation  of  him  who 
could  take  advantage  of  it."6  Another  lexicographer  has  de- 
fined it  as  meaning:  "Of  no  force  or  effect:  absolutely  null ; 
that  cannot  be  affirmed,  or  made  effectual.  A  thing  may  be 
void  in  several  degrees ;  it  may  be  void  as  to  some  persons  or 
purposes,  and  valid  as  to  others;  void  things  are  as  no 
things."7  "Null,  ineffectual,  nugatory,  having  no  legal 
force,  or  binding  effect;"8  "unable,  in  law,  to  support  the  pur- 
pose for  which  it  is  intended."9 

A  court  may  judicially  declare  a  void  marriage  to  be  void. 
A  learned  jurist  says :     "  A  void  marriage  imposes  no  legal 

1  6  Wis.,  645.  40  Wis.,  131.  2  Edw.  Chy,,  289.  18  Johns.,  515.  44  Pa.  St.,  9. 
2  36  Iowa,  201.  3  42  Ala.,  462.  *  6  Mete.,  415.  6  50  Mo.,  287.  G  Wharton  Law  Diet 
7  Burrill  Law  Diet.  tit.  "Void."  8  9  Cowan,  778.  9  Black's  Law  Diet.,  tit.  "Void." 


"VOID,"  "VOIDABLE"  AND  "NULLITY."  329 

restraint  upon  the  party  imposed  upon,  from  contracting  an- 
other, though  prudence  and  delicacy  do,  until  the  fact  is  so  gen- 
erally known  as  not  to  be  a  matter  of  doubt,  or  until  it  has  been 
impeached  in  a  judicial  proceeding."1  But  it  was  properly 
said :  "  Though  a  man  marries  never  so  often,  he  can  have 
but  one  lawful  wife  living.  So  long  as  she  is  living,  and  the 
marriage  bond  remains  in  full  force,  all  his  subsequent  mar- 
riages, whether  meretricious  or  founded  in  mistake,  and  at 
the  time  supposed  to  be  lawful,  are  utterly  null  and  void.  "2 
No  decree  of  divorce  is  necessary  to  annul  such  subsequent 
marriage,  for  it  never  had  any  legal  existence.3  Such  was 
clearly  the  common  law.  *  A  "  subsequent  marriage  was 
merely  void,  and  needed  not  any  *  sentence  of  divorce. 
It  was  void  db  initio,  and  so  she  was  always  sole."  "  No 
person  can  marry  while  the  former  husband  or  wife  is  living. 
Such  marriage  is,  by  the  common  law,  absolutely  null  and 
void."4 

A  learned  jurist  has  said  that :  "  A  thing  is  void  which  is 
done  against  law  at  the  very  time  of  doing  it,  and  when  no 
person  is  bound  by  the  act ;  but  a  thing  is  voidable  which  is 
done  by  a  person  who  ought  not  to  have  done  it,  but  who, 
nevertheless,  cannot  avoid  it  himself  after  it  is  done.  *  * 
Whenever  the  act  done  takes  effect  as  to  some  purposes,  and 
is  void  as  to  persons  who  have  an  interest  in  impeaching  it, 
the  act  is  not  a  nullity,  and  therefore,  in  a  legal  sense,  is  not 
utterly  void,  but  merely  voidable.  Another  test  of  a  void 
act  or  deed  is,  that  every  stranger  may  take  advantage  of  it, 
but  not  of  a  voidable  one.  Again,  a  thing  may 

be  void  in  several  degrees :  (1)  Void  so  as  if  never  done  to  all 
purposes,  so  as  all  persons  may  take  advantage  thereof ;  (2) 
void  as  to  some  purposes  only ;  (3)  so  void  by  operation  of 
law,  that  he  that  will  have  the  benefit  of  it,  may  make  it 
good."5 

"  An  act  may  be  void  db  initio  or  ex  post  facto."  The 
former  is  strictly  void,  the  latter  strictly  "voidable."6 

1  4  Johns.  Chy.,  346.    6  How.,  592.    2  22  Ala.,  101.    3  Shelf.  Div.,  480.    *2  Kent 
Com.,  79.    5 18  Johns.,  527.    6  Rapalje  Law  Diet.,  tit.  "Void." 


330  MAKKIAGE  AND  DIVORCE. 

The  above  definitions  will  furnish  a  general  idea  of  the 
difficulty  which  besets  even  a  lawyer  in  attempting  to  define 
the  concrete  signification  of  the  terms  indicated,  or  to  deter- 
mine upon  proper  action  in  reference  to  the  same.  The 
statutes  of  a  State  have  the  right,  which  they  frequently  exer- 
cise, to  prescribe  what  conditions  must  be  observed  to  form, 
and  what  parties  may  enter  into,  a  valid  marriage,  and  may 
also  declare  such  and  such  marriages  to  be  void.  And  they 
frequently  declare  that  certain  assumed  marriages  are  void 
without  any  necessity  for  adjudication,  and  in  such  cases 
they  are  void  not  only  in  the  place  of  celebration,  but  every- 
where else :  for  the  rule,  which  is  elsewhere  stated,  may  be 
restated,  that  a  marriage  valid  by  the  law  of  the  place  where 
celebrated  is  valid  everywhere,  and  that  a  marriage  which  is 
void  by  the  law  of  the  place  where  celebrated,  is  wwdjevery- 
where. 

In  reference  to  divorces,  the  matter  becomes  more  diffi- 
cult of  consideration.  From  the  very  nature  of  the  case,  a 
second  marriage  contracted  by  a  party  who  is  already  mar- 
ried and  undivorced,  must  necessarily  be  void,  without  any 
decree  or  necessity  for  court  proceedings,  and  the  only  neces- 
sity on  the  part  of  an}T  for  a  decree  declaring  such  second 
marriage  void,  would  be  to  spread  it  of  record  while  the  evi- 
dence was  obtainable.  But  if  the  party  thus  polygamously 
inclined,  should  have  procured  a  spurious  divorce  from  the 
first  marriage,  although  such  spurious  divorce  would  be  void, 
yet,  if  properly  of  record,  it  might  be  valid  in  form,  although 
void  in  fact,  and  would  need  a  court  decree  to  annul  it,  be- 
fore its  being  void  would  be  available. 

The  "  Utah  "  decrees  were  somewhat  different  from  those 
of  other  jurisdictions  in  this  respect,  viz. :  That  the 
"  Utah  "  decrees,  on  their  face,  showed  that  the  plaintiff 
never  resided  there.  They  were  thus  ipso  Jacto  void,  and  fell 
by  their  own  weight.  But  when  a  decree  itself  recited  apt 
and  proper  jurisdictional  facts  which  needed  evidence  dehors 
the  record  to  controvert,  in  such  case,  such  decree  could 


^-v 

or  THE    •     \ 
UNIVERSITY  1 

OF  J 

"VOID,"  "VOIDM^''  AND  "NULLITY."  331 

only  be,  in  effect,  voidable,  although  easily  avoided :  and  when 
avoided,  would  be  void  ab  initio. 

In  case  of  miscegenation,  in  States  where  a  marriage  be- 
tween a  white  and  a  black,  or  a  mulatto,  etc.,  is  declared  to 
be  void,  it  is  apparent  that  a  judicial  investigation  is  needful 
to  determine  if  or  not  the  person  labors  under  the  disability. 
A  novice  in  law  matters  might  indeed  say  that  in  case  of  an 
unmistakable  white  person  and  an  ebony  black  one,  no  legal 
investigation  would  be  needed — that  profert  of  the  parties 
was  sufficient.  But  the  test  might  be  demanded  when  the 
parties  were  not  available,  or  were  dead,  and  profert  could  not 
be  had,  i.  e.,  the  party  under  disability  might  have  runaway, 
etc.  In  such  cases,  there  are  two  conditions  needed  to  con- 
cur :  First,  That  one  party  be  colored,  and  second,  that  the 
other  party  be  white,  and  then  there  are  sub-controversies, 
even  here,  as  the  degree  of  color,  etc.,  and,  as  I  have  intim- 
ated, a  question  of  property  might  arise  after  the  colored 
party  was  dead.  Another  difficult  question  will  arise  in  case 
of  impotence.  In  some  jurisdictions  these  marriages  are 
declared  to  be  void,  but  the  fact  of  impotency  is  concealed  and 
must  be  decided  by  a  judicial  inquiry.  In  case  of  a  mar- 
riage of  a  lunatic  being  void,  the  fact  of  lunacy  may  indeed 
be  of  record  in  the  court  of  lunacy,  but  there  is  no  connec- 
tion or  adhesion  between  the  lunatic  thus  adjudged,  and  this 
marriage,  and  a  judicial  proceeding  will  be  necessary  to 
establish  it.  Similar  remarks  will  apply  to  cases  within 
degrees  of  consanguinity  and  affinity.  The  fact  maybe  well 
known  that  an  uncle  has  married  his  niece,  or  a  brother  his 
sister,  but  the  court  must  know  it  judicially,  by  evidence 
arrayed  in  the  proper  way :  and  similar  suggestions  may  be 
made  in  reference  to  force,  fraud,  duress,  non-age,  lack  of 
parental  consent,  etc. 

Even  thus,  in  cases  which  are  declared  to  be  void  ipso 
facto  without  the  intervention  of  legal  proceedings,  it  is, 
nevertheless,  well  to  bring  suit  and  spread  it  of  record  as 
I  have  said,  in  order  to  define  the  parties  and  make  that 


332  MAKR1AGE  AND  DIVORCE. 

concrete  which  before  was  abstract.  But  there  are  other 
cases  where  the  court  must  declare  a  decree  to  be  void  be- 
fore it  will  be  so,  and,  until  so  declared,  the  decree  is  valid. 
Moreover,  in  some  States,  it  is  expressly  adjudged  that,  in 
some  cases,  although  a  decree  may  be  adjudged  to  be  void, 
yet  that  it  shall  be  void  only  from  the  date  of  the  decree, 
and,  in  such  cases,  all  consequences  attaching  to  a  valid  de- 
cree do  thus  attach  until  so  declared  void. 

When  the  courts  of  one  State  declare  and  adjudge  that 
the  decree  of  another  State  shall  be  a  nullity,  they  mean 
that  it  is  a  nullity  so  far  as  the  former  State  is  concerned, 
and,  if  the  former  decree  is  regular,  this  State  cannot  an- 
nul it  even  for  effect  in  its  own  jurisdiction,  except  on  the 
ground  of  fraud,  or  the  jurisdiction,  because,  unless  that 
intervenes,  the  Constitution  of  the  United  States  requires  the 
"  full  faith  and  credit  "  to  give  to  the  record  in  the  original 
State. 

It  consequently  follows  that  the  courts  of  one  State  might 
nullify  the  decree  of  another,  and  still  another  State  uphold 
it.  The  Supreme  court  of  the  United  States,  in  Cheever  v. 
Wilson,  sustained  an  Indiana  divorce ;  while  the  Supreme 
court  of  Michigan,  in  People  v.  Mawell,  otherthrew  a  similar 
decree.  In  like  manner,  New  York,  in  case  of  Kinnear  v. 
Kinnear,  sustained  a  foreign  decree,1  while,  in  case  of  the 
People  v.  Baker,  they  overthrew  it.2  In  a  case  divested  of 
fraud,  it  would  be  obnoxious  to  the  constitution  of  the  United 
States  to  nullify  a  bona  fide  decree ;  but  the  State  courts 
claim  great  latitude  in  the  inquiry  whether  a  decree  of  anoth- 
er State  is  fraudulent.  The  four  cases  just  cited  are  sug- 
gestive, as  showing  the  glorious  uncertainty  of  the  law  when 
diverse  jurisdictions  are  concerned,  and,  also,  as  showing 
of  how  little  avail  a  decree  of  one  State  is  in  another  State 
which  chooses  to  disregard  it.  In  New  York,  it  has  been 
held  that  a  judgment  for  divorce,  rendered  by  a  court  having 
jurisdiction  of  the  parties  and  subject  matter,  cannot  be  at- 

i  45  N.  Y.,  535.    s  76  N.  ¥.,  78. 


"VOID,"  "VOIDABLE"  AND  "NULLITY."  333 

tacked  for  alleged  fraud  in  its  procurement,  in  an  action  by  a 
subsequent  husband  of  the  divorced  wife,  seeking  to  have  his 
marriage  declared  void  on  the  ground  that  the  former  mar- 
riage is  still  of  force,  and  the  former  husband  still  living.1 
And  any  one  legally  interested  in  property  rights,  as  well  as 
the  parties  themselves,  may  avoid  the  force  of  a  fraudulent 
decree,  and  have  it  annulled  as  far  as  they  are  concerned. 

A  decree  of  divorce,  properly  considered,  assumes  that 
the  parties  were  lawfully  married,  and  so  remained  to  the 
date  of  the  decree. 

A  decree  of  nullity  proceeds  upon  the  theory  that  no  valid 
marriage  ever  took  place  between  the  parties. 

If  the  defendant  had  already  a  husband  or  wife  living, 
the  second  (so-called)  marriage  would  be  null  and  void,  as 
well  without  a  decree  as  with  it ;  nor  would  it  be  made  valid 
(in  the  absence  of  a  statute)  if  the  former  husband  or  wife 
should  die ;  in  that  case,  there  must  be  a  new  ceremony.  In 
all  cases  of  a  void  marriage,  the  issue  would  be  illegitimate, 
in  absence  of  a  statute.  A  marriage,  merely  voidable,  will 
have  all  the  incidents  of  a  valid  marriage,  until  vacated  by 
suit  and  decree ;  when  thus  done,  it  will  be  void  from  the 
beginning. 

Marriage  between  persons  inhibited  by  consanguinity  and 
affinity,  are  voidable,  but  not  void.  So,  likewise,  of  the  in- 
herent defect  of  impotence ;  all  the  incidents  of  marriage 
are  attained  in  a  marriage  which  is  merely  voidable,  and,  if 
never  set  aside  by  decree,  it  is  as  if  it  was  an  indefeasible 
union.  But  if  annulled,  it  is  regarded,  in  the  absence  of  an 
express  statute  to  the  contrary,  as  a  marriage  void  from  the 
beginning;  there  is  no  dower,  curtesy,  nor  alimony;  the 
children  are  illegitimate ;  the  wife  may  sue  for  services,  as  if 
she  had  been  a  hired  servant,  and  she  may  recover  back  any 
property  which  the  husband  has  converted  to  his  use  during 
the  union :  the  seal  of  confidence  is  even  removed  from 

i  45  N.  Y.,  535.    21  Hun.,  489. 


334  MAEKIAGE  AND  DIVORCE. 

any  communications  which  may  have  taken  place  between 
them  during  the  continuance  of  the  married  state. 

While  the  most  cogent  reason  for  a  suit  to  annul  a  mar- 
riage is  to  destroy  a  voidable  one,  yet  it  is  often  of  importance 
to  spread  upon  record,  and  confirm  by  judicial  decree,  the 
facts  of  a  void  marriage.  It  has  been  held  that,  although  a 
statute  may  denominate  the  proceeding  to  declare  the  union 
null  a  "divorce,"  yet,  that  in  a  case  proper  for  nullity  of  the 
marriage  bond,  all  of  the  proper  incidents  obtain,  notwith- 
standing the  nomenclature. 

By  reference  to  the  statutes  of  the  various  States,  it  will 
appear  that  in  some  States,  an  assumed  and  ceremonial  mar- 
riage is  declared  to  be  void  without  any  decree  or  action  of  a 
court,  and  it  is  so  ipso  facto  in  every  such  case ;  but  even 
then,  the  office  of  a  court  may  be  secured,  if  desirable,  in 
order  to  make  the  nullity  a  matter  of  judicial  record  for 
safety  or  convenience.  In  other  cases  the  statute  absolutely 
prohibits  certain  classes  from  inter-marrying,  as  whites  and 
blacks,  and  in  such  cases,  even  though  the  prohibited  parties 
have  gone  through  the  form  of  marriage,  it  is  a  nullity. 

There  are  yet  other  cases  where  the  law  makes  a  mar- 
riage void,  but  a  judicial  investigation  is  needful  to  deter- 
mine if  the  facts  exist,  making  it  void.  As  already  discussed, 
a  marriage  between  a  typical  African  and  a  typical  Cauca- 
sian would  require  no  judicial  investigation,  but  a  marriage 
between  persons  partly  white  and  partly  black  might  require 
such  investigation.  So  of  persons  impotent,  idiotic,  insane, 
within  prohibited  degrees,  etc. :  and  all  that  be  properly  said 
of  a  marriage  which  needs  investigation,  is,  that  such  a  mar- 
riage  is  voidable.  When  a  decree  is  obtained,  it  avoids  it  ab 
initio,  except  where  otherwise  provided.  But  a  merely  voida- 
ble marriage,  i.  e.,  one  where  it  is  voidable  at  the  parties' 
election,  will  be  valid  till  avoided.  So,  also,  will  those  cases 
where  the  legislature  declares  that  a  void  marriage  shall  be 
valid  till  decree  of  nullity.  Thus  it  will  appear  that  there 
are  two  kinds  of  void  marriages — one  where  they  are  void  in- 


"VOID,"  "VOIDABLE"  AND  "NULLITY."  335 

herently,  and  one  where  they  are  void  at  the  election  of  the 
parties,  and  the  former  class  may  in  result  not  be  void,  because 
no  one  moves  in  the  matter.  There  is  obscurity  and  difficulty 
frequently  in  a  practical  application  of  the  subject,  and,  in 
some  cases,  judicial  interpretation  is  required. 

In  Maine,  a  marriage  is  void  within  prohibited  degrees ; 
for  insanity  or  idiocy ;  former  husband  or  wife  living ;  be- 
tween white  and  black,  mulatto  or  Indian ;  where  either  was 
under  the  age  of  consent.  All  of  these,  except  former  spouse 
living,  are  merely  voidable.  If  parties  continue  to  live  to- 
gether through  life,  the  usual  incidents  of  marriage  obtain. 
In  New  Hampshire,  a  marriage  solemnized  within  the  State, 
within  the  prohibited  degrees,  is  voidable,  and  when  former 
husband  or  wife  living,  if  known  to  party,  is  void.  In  Ver- 
mont, if  solemnized  within  the  State,  is  voidable  if  within 
the  prohibited  degrees,  and  void  if  bigamous.  If  either 
party  was  under  the  age  of  legal  consent,  and  they  have  not 
freely  cohabited  after  attaining  full  age,  it  is  voidable  at  elec- 
tion of  infant  party ;  for  idiocy  or  lunacy,  unless  lunatic  was 
restored  to  reason  and  parties  freely  cohabited  thereafter; 
for  impotency,  if  brought  by  the  sound  party  within  two 
years;  force  or  fraud,  unless  parties  voluntarily  cohabited 
together.  In  Massachusetts,  marriages  are  void  without  legal 
process  within  prohibited  degrees,  if  solemnized  within  the 
State ;  bigamous,  idiotic  or  insane,  or  where  either  party  was 
under  the  age  of  legal  consent,  if  the  parties  separate  during 
non-age  and  do  not  cohabit  thereafter.  In  Rhode  Island, 
marriage  within  prohibited  degrees,  idiocy  or  lunacy  or  big- 
amous, are  void.  In  Connecticut,  marriage  within  prohibited 
degrees,  bigamous,  or  when  celebrated  by  unauthorized  per- 
son, are  void.  In  New  York,  a  marriage  within  prohibited 
degrees  is  void,  or  if  former  husband  or  wife  be  living,  unless 
he  or  she  shall  have  been  absent,  unknown  for  five  successive 
years,  in  which  case  the  second  marriage  shall  be  good  until 
declared  void  by  competent  authority ;  where  either  party  is 
incapable  from  want  of  age  or  understanding,  if  suit  brought 


336  MARRIAGE  AND  DIVORCE. 

by  party  under  age ;  not  void,  however,  if  parties  freely  co- 
habited after  age  of  consent  was  reached,  nor  by  female 
under  16,  if  she  had  parental  consent,  and  even  then  only 
void  from  date  of  decree ;  voidable  for  impotence  if  incur- 
able and  action  brought  by  sound  party  within  two  years, 
and  then  decree  only  good  from  date  of  decree ;  void  also  for 
force  or  fraud  at  suit  of  injured  party  unless  they  voluntarily 
cohabit,  and,  if  pronounced  void,  then  only  from  date  of  de- 
cree. In  Neiv  Jersey,  a  marriage  is  void  if  against  the  will 
of  a  female,  or  if  she  was  under  15  years  of  age,  without 
parental  consent,  or  for  impotency,  or  when  it  is  bigamous. 
In  Pennsylvania  it  is  void  within  prohibited  degrees  (but  can 
not  be  questioned  after  death  of  party),  or  bigamous.  In 
Delaware  a  marriage  is  void  within  prohibited  degrees,  be- 
tween white  and  black  or  mulatto,  bigamous,  party  insane,  or 
when  solemnized  by  unauthorized  person,  and  marriage  with 
a  pauper  prohibited.  In  District  of  Columbia  marriage  is 
void  if  bigamous,  or  within  prohibited  degrees.  In  Maryland 
a  marriage  is  void  if  bigamous,  within  prohibited  degrees,  or 
between  white  and  persons  of  negro  descent  to  the  third  gen- 
eration. In  Virginia  a  marriage  is  void  if  bigamous ;  be- 
tween a  whites  and  colored  person ;  where  either  was  under 
the  age  of  consent,  if  they  do  not  voluntarily  thereafter  co- 
habit ;  or  within  prohibited  degrees ;  where  either  party  was 
insane  or  impotent;  if  in  three  last  cases  marriage  was 
solemnized  within  the  State ;  and  decree  to  take  effect  from 
its  rendition,  or,  in  case  of  prohibited  parties,  from  time  of 
conviction  of  parties  of  incest.  In  West  Virginia,  a  mar- 
riage within  prohibited  degrees  is  void,  and  voidable  from 
time  a  decree  of  nullity  is  pronounced,  when  bigamous,  or 
want  of  age,  insane,  between  white  and  black,  or  impotent. 
In  North  Carolina,  a  marriage  is  void  within  prohibited  de- 
grees, bigamous,  between  a  white  and  a  person  of  negro  or 
Indian  descent  to  the  third  generation,  when  either  is  under 
age  of  consent,  impotent,  lacks  will  or  understanding  to 
marry,  or  between  a  Croatian  Indian  and  negro  descendant  to 


"VOID,"  "VOIDABLE"  AND  "NULLITY.  337 

the  third  generation ;  but  no  marriage  followed  by  cohabita- 
tion, and  issue,  shall  be  void  for  any  cause  stated,  after  death 
of  either,  except  for  bigamy,  or  for  miscegenation.  In  South 
Carolina,  a  marriage  is  void  if  bigamous,  or  between  a  white 
and  Indian,  negro,  mulatto,  mestizo  or  half-breed,  and  un- 
less consummated  by  cohabitation ;  when  lacking  consent  of 
either  party,  or  for  any  cause  showing  that  a  contract  had 
not  been  made.  In  Georgia,  a  marriage  is  void  within  pro- 
hibited degrees ;  between  whites  and  persons  of  African  de- 
scent, bigamous,  within  nearness  of  relationship  by  blood  or 
marriage,  impotency  or  fraud,  unless  ratified  by  cohabita- 
tion. In  Florida,  a  marriage  is  void  within  prohibited  de- 
grees, bigamous,  or  between  white  and  colored  in  any  degree. 
In  Alabama,  a  marriage  within  prohibited  degrees  is  void,  and 
a  bigamous  marriage,  or  when  either  party  is  under  the  age 
of  legal  consent,  between  white  and  colored  to  third  genera- 
tion inclusive,  or  when  marriage  of  female  is  procured  by 
menace,  force  or  duress.  In  Mississippi,  a  marriage  is  void 
if  within  prohibited  degrees,  bigamous,  or  between  white  per- 
son and  a  person  having  one-fourth  or  more  negro  blood. 
In  Louisiana,  a  marriage  is  void  within  prohibited  degrees, 
or  bigamous  or  voidable  at  instance  of  innocent  party  when 
obtained  by  force  or  fraud,  or  when  mistake  in  the  person. 
In  Texas,  a  marriage  is  void  between  whites  and  negroes  or 
their  descendants ;  for  impotence  or  contract  void ;  marriages 
are  prohibited  within  prohibited  degrees ;  bigamous ;  under 
ages  of  legal  consent ;  when  female  is  abducted  or  forced  into 
marriage.  In  Arkansas,  a  marriage  is  void  within  prohibited 
degrees;  between  whites  and  negroes  or  mulattoes;  when 
either  party  was  incapable  of  giving  consent ;  impotency ;  or 
force  or  fraud.  In  Missouri,  marriage  is  void  within  pro- 
hibited degrees ;  between  white  persons  and  negroes ;  biga- 
mous ;  or  when  marriage  of  female  is  procured  by  force,  fraud 
or  duress. 

In  Kentucky,  marriages   are   void  within  prohibited  de- 
grees :  idiocy  or  lunacy ;  between  a  white  and  negro,  or  mu- 


338  MARRIAGE  AND  DIVORCE. 

latto ;  bigamous ;  when  solemnized  by  an  unauthorized  per- 
son ;  under  age  of  consent ;  procured  by  force  or  fraud ; 
without  parental  consent  under  sixteen,  if  male,  or  fourteen, 
if  female,  unless  cohabitation  after  such  ages.  In  Tennessee, 
marriages  are  void  if  bigamous ;  or  within  prohibited  degrees ; 
or  when  the  marriage  of  the  female  is  obtained  by  menace, 
force,  or  duress ;  or  between  a  white  and  colored,  to  the  third 
generation.  In  Ohio,  marriages  are  prohibited  when  under 
age  of  consent,  bigamous,  or  within  prohibited  degrees.  In 
Michigan,  marriages  are  void .  within  prohibited  degrees,  or 
bigamous,  if  solemnized  within  the  State ;  when  either  party 
was  insane  or  an  idiot,  if  solemnized  within  the  State ;  and 
lunatic  when  not  recovered,  and  afterward  cohabited ;  or,  if 
under  age  of  consent,  and  parties  have  not  thereafter,  after 
age,  cohabited ;  when  consent  obtained  by  force  or  fraud, 
and  parties  have  not  voluntarily  cohabited  thereafter ;  when 
either  party  is  physically  incapable,  if  suit  is  brought  within 
two  years  by  party  injured ;  when  woman  is  compelled  by 
force,  menace,  or  duress,  to  marry  against  her  will.  In  In- 
diana, a  marriage  is  void  within  prohibited  degrees ;  bigamous ; 
between  white  and  person  of  one-eighth  or  more  negro  blood ; 
insanity  or  idiocy ;  when  either  is  incapable  for  want  of  un- 
derstanding, but  the  incapable  party  shall  sue ;  and  children 
are  legitimized.  In  Illinois,  a  marriage  is  void  if  bigamous ; 
or  within  prohibited  degrees ;  either  party,  insane  or  idiotic, 
or  obtained  by  fraud  or  false  personation.  In  Iowa,  a  mar- 
riage is  void  within  prohibited  degrees;  bigamous;  within  age 
of  legal  consent ;  impotent ;  insane  or  idiotic ;  or  where  mar- 
riage of  female  is  obtained  by  force,  menace,  or  duress.  In 
Wisconsin,  a  marriage  is  void,  if  celebrated  in  the  State,  with- 
in prohibited  degrees ;  or  bigamous  ;  when  either  party  was 
incapable  of  consenting  thereto ;  from  want  of  age  or  under- 
standing; or  when  consent  was  obtained  by  force  or  fraud,  if 
there  was  not,  in  the  two  latter  cases,  subsequent  voluntary 
cohabitation ;  and,  if  not,  the  judgment  will  be  void  from 
date  of  sentence  of  nullity.  In  Minnesota,  marriages  a*e 


"VOID,"  "VOIDABLE"  AND  "NULLITY."  339 

void  if  solemnized  within  the  State,  when  bigamous ;  but,  if 
the  absent  spouse  has  been  absent,  without  knowledge,  for 
five  successive  years,  it  shall  be  void  only  from  date  of  de- 
cree; also,  if  solemnized  within  the  State;  for  being  within 
prohibited  degrees ;  or,  when  either  party  is  incapable  for 
want  of  age  or  understanding,  or  when  consent  is  obtained 
by  force  or  fraud,  but  void  only  from  date  of  decree ;  and 
void  only  at  suit  of  party  under  age,  unless  there  has  been 
voluntary  cohabitation  subsequently ;  but  not  for  lunacy,  if 
party  is  restored  and  free  cohabitation  had  thereafter.  In 
Nebraska,  a  marriage  is  void  within  prohibited  degrees,  or 
bigamous,  or  between  a  white  and  one  having  one-fourth  or 
more,  negro  blood ;  when  either  party  is  insane  or  an  idiot, 
unless  the  lunatic  is  restored  and  parties  have  cohabited ; 
when  either  party  is  under  age  of  consent,  if  no  cohabitation 
takes  place  after  maturity ;  where  consent  of  either  is  obtained 
by  force  or  fraud,  and  no  subsequent  cohabitation ;  impoten- 
cy,  if  suit  by  sound  party  within  two  years.  In  Kansas, 
marriages  are  prohibited  within  prohibited  degrees ;  biga- 
mous; when  marriage  of  female  was  procured  by  force, 
menace,  or  duress ;  where  either  party  is  incapable  from  want 
of  age  or  understanding ;  but  cohabitation,  after  it  ceases, 
cures  it.  In  Colorado,  a  marriage  is  void  within  the  prohib- 
ited degrees ;  between  whites  and  negroes  and  mulattoes ;  big- 
amous ;  or  when  consent  of  female  is  procured  by  force  or 
fraud. 

In  the  Dakotas,  marriages  are  void  within  prohibited  de- 
grees ;  or  bigamous,  unless  absent  one,  was  gone  without  know- 
ledge for  five  years,  or  was  generally  reputed,  and  believed, 
to  be  dead,  in  which  case  void  only  from  date  of  decree. 
When  parties  under  age  of  consent,  without  parental  consent, 
unless  they  cohabited  thereafter ;  force,  or  fraud,  unless  they 
cohabited  voluntarily  thereafter,  or  impotency. 

In  California,  marriages  are  void  within  prohibited  de- 
grees, between  whites  and  negroes,  or  mulattoes;  bigamous, 
unless  party  was  absent  five  years  without  knowledge,  or,  be- 


340  MARRIAGE  AND  DIVORCE. 

lieved  to  be  dead,  or,  generally  reputed  to  be  dead,  when  de- 
cree avoided  only  from  date  of  decree ;  under  age  of  legal 
consent  without  parental  consent,  unless  they  freely  cohabited 
after  majority;  unsound  mind,  unless  after  restoration  parties 
cohabited ;  impotency ;  force  or  fraud,  unless  they  cohabited 
voluntarily  thereafter. 

In  Nevada,  if  solemnized  within  the  State,  a  marriage  is 
void  for  bigamy ;  within  the  prohibited  degrees  where  either 
party  incapable  for  want  of  age  or  understanding,  unless  they 
cohabit  after  incapacity  was  removed ;  fraud ;  marriage  of 
female  procured  by  force,  menace,  or  duress  ;  between  white 
and  blacks,  mulattoes,  Indians,  or  Chinese. 

In  Montana,  marriages  are  void  within  prohibited  degrees ; 
bigamous ;  when  either  party  is  under  age  of  consent ;  fraud 
by  false  personation ;  when  marriage  of  female  is  procured  by 
force,  threats,  menace,  or  duress. 

In  Oregon,  if  solemnized  in  the  State,  a  marriage  is  void 
within  prohibited  degrees ;  bigamous ;  between  a  white  and  a 
person  of  one-fourth,  or  more,  negro,  Chinese,  or  Kanaka 
blood,  or  more  than  half-Indian  blood ;  want  of  age  or  under- 
standing, or  when  consent  was  obtained  by  force  or  fraud ; 
not  in  two  latter  cases  if  voluntary  cohabitation  subsequently, 
and  annulment  only  from  date  of  decree. 

In  Washington,  marriage  is  void  at  suit  of  innocent  party, 
when  either  party  was  incapable  of  consent  from  want  of  age 
or  understanding,  or  when  consent  was  obtained  by  force  or 
fraud ;  within  prohibited  degrees  or  bigamous. 

In  Wyoming,  within  prohibited  degrees,  bigamous ;  where 
either  party  was  insane,  or  an  idiot,  unless  they  cohabited  after 
restoration  to  reason,  when  either  party  was  under  age  of  legal 
consent,  unless  they  cohabit  together  subsequently  to  majority, 
or  when  either  party  was  coerced  or  defrauded,  unless  they  co- 
habited afterward  voluntarily. 

In  Arizona,  marriages  are  void  within  prohibited  decrees ; 
bigamous,  fraud  by  false  personation;  where  female  was 


"VOID,"  "VOIDABLE"  AND  "NULLITY."  341 

married  by  force,  menace,  or  duress;  between  whites   and 
Africans,  or  Mongolians,  or  their  descendants ;  impotency. 

In  Idaho,  marriages  are  void  within  prohibited  degrees ; 
between  whites  and  negroes  or  mulattoes ;  bigamous,  unless 
when  party  was  absent  for  five  years,  unknown,  when 
nullity  dates  only  from  date  of  decree ;  where  marriage  was 
under  age  of  legal  consent,  and  no  parental  consent,  unless 
parties  freely  cohabited  after  majority ;  insanity,  unless  par- 
tics  voluntarily  cohabited  after  restoration;  force  or  fraud, 
unless  parties  cohabited  voluntarily  thereafter;  impotency. 

In  New  Mexico,  marriages  are  void  within  prohibited 
degrees,  or  when  under  age  of  consent. 

In  Utah,  a  marriage  is  void  within  prohibited  degrees,  or 
in  case  of  idiocy,  or  lunacy,  or  bigamous,  or  when  not 
solemnized  by  one  with  authority :  under  age  of  consent,  be- 
tween white  or  black,  or  Chinese ;  where  obtained  by  force, 
or  fraud  ;  within  age  of  legal  consent,  without  parental  con- 
sent, unless  •  parties  subsequently  cohabited  together  after 
majority. 


XLII. 
LEGISLATIVE   DIVOKCES. 


Up  to  a  comparatively  recent  date  in  England,  there  was 
no  such  thing  known  as  a  judicial  divorce :  i.  e.,  a  divorce  by 
a  court.  But  very  rarely,  Parliament  being  omnipotent  and 
unrestrained  by  any  exterior  authority,  was  solicited  to  grant 
a  divorce  to  some  titled  profligate,  and,  if  his  influence  was 
sufficiently  ponderous,  it  was  done,  but  it  was  by  virtue  of 
political  influence,  and  not  of  merit  or  right ;  it  was  not  a 
judicial  decree  upon  inquiry  and  by  reason  of  prescribed 
law,  but  a  law  in  which  force  was  the  judge,  jury  and  sheriff. 
By  virtue  of  this  bad  precedent,  some  of  our  legislatures  under- 
took to  do  the  same  thing,  and  I  think  some  few  of  our 
States  still  aver  their  power  and  right  to  do  so,  but  it  is  a 
custom  that  has  fallen  into  almost  utter  desuetude,  and  no 
longer  exists  as  a  practical  measure.1 

In  the  Illinois  legislature  of  1837,  a  petition  appeared  for 
a  divorce,  the  custom  having  thitherto  prevailed  to  a  very 
limited  extent ;  and,  on  this  occasion,  was  referred  to  the  com- 
mittee on  petitions,  of  which  Stephen  A.  Douglas,  then  in 
the  first  year  of  his  public  career,  was  chairman.  He  made 
an  adverse  report  on  this  case,  stating,  "That  it  is  uncon- 
stitutional, and  foreign  to  the  duties  of  legislation,  for  the 
legislature  to  grant  bills  of  divorce,"  and  that  ended  the  prac- 
tice in  that  State.  Nor  is  it  believed  that  a  legislative  di- 
vorce would  be  possible  now,  or  that  it  would  be  sustained, 
even  if  it  should  be  granted.  A  possible  exception  might  be 

i  8  Conn.,  541.  2  Md.,  429.  54  Pa.  St.,  255.  51  Me.,  480.  I  Met.  Ky.,  319. 
17  Ohto,  445.  1  Gill.  &  J.,  463.  4  Mo.,  120.  12  Mo.,  498.  17  Mo.,  590. 
44  Mo.,  232. 


LEGISLATIVE  DIVOKCES.  343 

made  of  South  Carolina,  where  there  is  no  judicial  divorce 
allowed ;  still,  in  a  government  of  prescribed  powers,  in  the  ab- 
sence of  such  conferred  power,  I  do  not  see  any  basis  for  it. 
At  any  rate,  its  consideration  can  only  be  speculative,  and, 
in  no  sense  practical. 

In  New  Hampshire  and  Massachusetts,  the  constitutions 
make  special  provision  as  to  the  mode  of  obtaining  divorces 
until  the  legislature  shall,  by  law,  make  other  provision. 
It  has  now  been  done  in  both  States,  which  makes  legislative 
.  divorces  impossible  there.  In  Georgia,  the  constitution  re- 
quires the  concurrent  verdicts  of  two  juries,  at  different  terms 
of  court,  before  a  decree  can  be  had.  In  Kansas,  all  power 
to  grant  divorces  is  vested  in  the  district  courts,  subject  to 
regulation  by  law.  In  Alabama,  "no  special  *  *  law 
shall  be  enacted  for  the  benefit  of  individuals  *  *  *  in 
cases  which  are,  or  can  be,  provided  for  by  a  general  law,  or 
where  the  relief  sought  can  be  given  by  any  court  in  the 
State.  In  Delaware,  no  legislative  divorces  shall  be  author- 
ized for  any  cause  cognizable  in  the  courts,  nor  without  one 
month's  newspaper  publication.  The  legislatures  of  the  va- 
rious Territories  are  prohibited  from  granting  divorces,  and 
all  State  legislatures  are  also  prohibited  from  doing  so,exceptin 
Alabama,  Connecticut,  Delaware,  Georgia,  Kansas,  Maine, 
Massachusetts,  New  Hampshire,  Rhode  Island  and  Vermont. 


XLIII. 
SEPAKATION  UNDEB  A  CONTKACT 


is  authorized  under  the  practice  of  most  of  our  States,  the  doc- 
trine being  thus  stated  in  Bispham's  Eq.,  Sec.,  189 :  "Family 
compromises,  especially  if  they  are  made  in  good  faith  and 
with  full  disclosure,  are  favored  in  equity,  and  may  be  sustained 
by  the  court,  albeit,  perhaps,  resting  upon  ground  which 
would  not  have  been  satisfactory  if  the  transactions  had  oc- 
curred between  strangers ;"  or,  "the  power  of  a  husband  to 
make  a  settlement  of  property  or  funds  on  his  wife,by  the  in- 
tervention of  a  trustee,  has  never  been  questioned,  and  this 
may  be  done  by  a  marriage  settlement  before  marriage,  or 
by  a  deed  to  a  trustee  afterward.  When  the  settlement  or 
advancement  is  thus  made,  as  between  the  parties,  it  has  al- 
ways been  held  binding,  and  can  only  be  questioned  by  ex- 
isting creditors.  Such  settlements  *  *  have  always 
been  favored  by  the  courts."  It  is  usually  well,  and  some- 
times essential,  to  have  a  trustee.  But  in  some  States,  as 
in  Missouri  and  Texas,  and  in  one  or  two  other  States,  these 
settlements  are  not  regarded  with  much  favor.  Living  apart, 
under  a  deed  of  separation,  is  not  technical  desertion.  In 
Great  Britain,  when  divorces  were  not  in  vogue,  deeds  of 
separation  were  very  common,  but  they  are  not  used  much 
in  this  country.  They  might  be.  It  is  certainly  a  much  bet- 
ter practice  than  to  apply  for  a  divorce,  when  there  is  but 
feeble  reason  therefor.  l 

1  9  Gal.,  479.  9  Colo.,  133.  5  Day,  47.  8  Ga.,  341.  82  111.,  67.  1  Blackf .,  97. 
30  Ind.,  452.  25 la.,  350.  148  Mass.,  39.  37  Mich.,  563.  94  N.  0.,  527.  20  Ohio, 
518.  105 'Pa.,  31.  53  Vt.,  208.  31  Grat.,  52.  1  Mo.,  669.  34  Tex.,  553.  3 
Paiere,  500.  4  Dana,  140.  3  Mete.,  507.  41  Barb.,  93.  10  Ohio  S.,  247.  16  Ohio 
S.,531.  4  Bush.,  453.  35  Pa.  St.,  361. 


SEPAKATION  UNDEK  A  CONTRACT.         345 

I  annex  a  form  of  such  agreement,  which  the  Pennsyl- 
vania Supreme  court  upheld. 

Articles  of  agreement  made,  concluded,  and  agreed  upon, 
by  and  between  Richard  Butter,  of  Leacock  township,  in  the 
county  of  Lancaster,  of  the  first  part,  and  Julia  Rutter,  wife 
of  said  Richard,  of  the  same  place,  and  her  son  David  Bris- 
ben,  of  Salisbury  township*  in  said  county,  of  the  second 
part,  witness  that,  whereas,  differences  lately  happened  be- 
tween the  said  Richard  Rutter  and  Julia,  his  wife,  which 
caused  the  said  Julia  to  leave  her  said  husband ;  and  where- 
as, the  said  Richard  Rutter  and  Julia  are  desirous  that  all 
differences  heretofore  existing  between  them  shall  be  settled 
and  compromised,  and  that  they  will  again  live  together  in 
union  and  harmony  as  becomes  man  and  wife ;  and  in  con- 
sideration thereof,  and  for  the  purpose  of  avoiding  future  dif- 
ferences and  dissensions,  they  have  mutually  agreed,  and  by 
these  presents  do  agree,  that  their  respective  properties  and 
estates  shall  be  held  and  enjoyed  as  follows,  to-wit :  The 
said  Richard  Rutter  hereby  covenants  and  agrees  to  and 
with  his  wife  Julia  and  her  son  David  Brisben,  that  in  case 
the  said  Julia  shall  die  before  the  said  Richard,  that  then 
and  in  such  case,  upon  the  decease  of  the  said  Richard  Rut- 
ter, the  administrator  or  assigns  of  the  said  Richard  shall  pay 
over,  grant,  and  convey  the  one-half  of  all  his  estate,  real  and 
personal,  unto  the  said  David  Brisben,  only  child  of  the  said 
Julia  by  a  former  husband,  if  he  be  then  living,  and  in  case  he 
be  not  then  living,  to  his  child  or  children,  if  any  then  living, 
and  to  the  issue  of  any  then  dead,  per  stirpes,  their  heirs  and 
assigns  in  equal  shares  and  parts;  and  in  default  of  any 
child,  or  issue  of  any  deceased  child,  then  to  the  next  of  kin 
of  the  said  Julia,  their  heirs  and  assigns,  according  to  the 
intestate  laws.  And  the  said  Julia  Rutter,  by  the  advice  and 
approbation  of  her  son,  David  Brisben,  hereby  covenants  and 
agrees  that  the  said  Richard,  her  husband,  shall  receive  and 
take  for  his  own  use  the  annual  interest  or  the  principal  sum 
of  three  thousand  dollars,which  is  charged  on,  and  payable 
out  of,  the  real  estate  of  her  late  husband,  Henry  Brisben,de- 
ceased,  during  life  as  the  said  Richard  has  heretofore  re- 
ceived the  same,  so  long  as  the  said  Richard  and  Julia  shall 
live  together.  And  the  said  parties  do  hereby  mutually 
covenant  and  agree  that  in  case  any  future  separation  of  said 
Richard  and  Julia  shall  take  place,  either  by  his  leaving  her 


346  MARRIAGE  AND  DIVORCE. 

or  by  she  leaving  him,  that  then,  and  upon  such  separation, 
the  said  Eichard  shall  pay  to  said  Julia  the  sum  of  five 
hundred  dollars,  and  thereafter  suffer  and  permit  the  said 
Julia  to  take  and  receive  annually  the  interest  of  the  said 
sum  of  three  thousand  dollars,  payable  out  of  the  estate  of 
the  said  Henry  Brisben,  deceased,  as  aforesaid,  which  shall 
be  in  full  of  her  dower  right  of  and  in  his  estate.  And  in 
case  the  said  Julia  shall  survive  her  husband,  the  said  Eich- 
ard, and  they  shall,  at  the  decease  of  the  said  Eichard,  be 
living  together,  then  the  estate  of  the  said  Eichard  shall  pass 
and  be  distributed  agreeably  to  the  intestate  laws. 

In  witness  whereof,  the  said  parties  to  these  presents  have 
hereunto  set  their  hands  and  seals,  this  sixth  day  of  August, 
A.  D.  1849. 

EICHARD  EUTTEB.  [SEAL] 

JULIA  EUTTER.  [SEAL] 

DAVID  BRISBEN.  [SEAL] 


XLIV. 
BREACH  OF  PROMISE  OF  MARRIAGE. 


If  a  man  and  woman  agree  together  to  marry,  and  a  date 
is  fixed,  such  date  constitutes  part  of  the  contract,  and  the 
consummation  must  be  had  then,  unless  a  reasonable  cause  is 
shown  to  extend  it,  but  courts  will  not  be  astute  to  hold  a 
party  to  a  literal  performance  of  his  contract,  as  to  the  time.  If, 
however,  no  time  is  named,  it  will  be  presumed  to  be  within  a 
reasonable  time.  The  action  will  lie  at  suit  of  either  party, 
although,  usually,  the  female  is  plaintiff.  A  suit  will  not  lie 
against  an  infant;  i.  e.,  a  male  under  twenty-one,  or  a  female 
under  eighteen  in  some  States,  and  twenty-one  in  others ;  but 
if  an  adult  is  liable  on  the  breach  of  promise  to  an  infant,  the 
latter  may  maintain  suit  by  guardian  or  next  friend.  If  a  defend- 
ant in  such  suit  is  impotent,  such  impotency  is  a  bar,however, 
to  substantial  damage,  as  it  is  a  case  of  damnum  absque  inju- 
ria  j1  nominal  damages  to  cover  costs  only  would  be  allowed. 
There  can  be  no  damage  for  failure  to  marry  one  who  is 
impotent,  but  if  the  defendant  is  married  before  the  contract 
without  the  knowledge  of  the  plaintiff,  or  marries  after  the 
making  of  the  contract,  then  the  action  will  lie.  There  is  no 
rule  to  be  laid  down  for  gauging  the  damages  which  will  be 
authorized ;  it  will  depend  upon  the  age,  beauty,  and  position 
in  life  of  the  parties,  their  appearance,  the  degree  of  moral 
turpitude  inherent,  etc.  A  handsome  female  might  expect 
more  than  a  plain  one,  a  young  one  more  than  an  old  one, 
a  woman  than  a  man ;  in  fact,  the  circumstances  should  be 
very  exceptional,  which  would  authorize  a  male  to  sue  at  all. 

»  Gulick,  12.    Vroom,  13. 


348  MARKIAGE  AND  DIVORCE. 

And  I  was  once  consulted  by  an  aged  and  atrociously  plain 
female  about  the  propriety  of  her  suing  one  of  the  wealthiest 
brewers  of  Chicago  for  trifling  with  her 

"  *  *  Maiden  meditations,  fancy  free!" 

and  I  assured  her  she  could  not  hope  for  enough  results  to 
pay  my  fee. 

The  mistreatment  of  the  female  by  the  male,  as  seduction, 
slander,  unmanly  treatment  of  any  sort,  will  be  admissable 
in  aggravation  to  enhance  the  measure  of  damage.  Any 
circumstance  disclosed  subsequently  to  the  promise,  tending 
to  lessen  the  defendant's  value  as  an  eligible  match,  is  author- 
ized, in  diminution  of  damages.  If  it  should  be  made  patent 
that  the  female  plaintiff  was  pregnant  before  the  promise, 
and  that  such  fact  was  unknown  to  the  defendant,  it  would 
preclude  any  recovery  whatever.  Evidence  is  usually 
circumstantial,  as  marked  attention,  the  giving  of  presents, 
perodical  visits  and  long  sessions  together,  the  demeanor 
toward  each  other,  but  not  infrequently  there  is  correspond- 
ence which  is  conclusive,  or  in  some  cases  direct  admissions, 
which  are  equally  so.  If  the  defendant  offers  to  carry  out 
the  agreement  after  suit  is  brought,  it  will  not  be  a  bar  of  the 
suit,but  may  be  offered  in  mitigation  of  damages. 

If  a  party  fails  to  carry  out  his  agreement  at  or  about 
the  time  agreed  on,  or  within  a  reasonable  time,  and  the 
injured  party  gives  ample  warning,  in  vain,  and  then  brings 
suit,  an  expressed  willingness  to  then  carry  out  the  contract 
will  not  bar  recovery,  although  it  may  be  left  to  the  jury  to 
say  if  or  not  the  suit  was  premature,  or  sufficient  opportunity 
had  or  had  not  been  given,  or  in  mitigation  of  damages. 


XLV. 

THE  ETHICS  OF  DIVOECE. 

It  may  as  well  be  conceded  in  advance  that  in  all  coun- 
tries, in  all  ages  and  among  all  people,  sexual  intercourse  is 
a  social  institution,  which  does,  and  will  continue  to  exist,  in 
the  most  sober  and  most  frivolous  society  alike,will  be  regula- 
ted by  the  law  of  demand  and  supply,  whose  exercise  is 
essential  to  a  normal  condition  of  life  and  being,  and  which 
may  be  morally  healthful  or  baneful,  accordingly  as  its  use 
and  application  is  proper,  or  not.  The  practical  socialists  com- 
menced at  Hull,  England,  with  the  total  abnegation  of  the 
sexual  instinct,  and  ended  at  Oneida  county,  New  York,  with 
practices  of  the  most  abominable  lechery :  and  the  Eev.  John 
Humphrey  Noyes,  who  commenced  life  as  one  of  the  most 
chaste  and  self-denying  ascetics,  in  his  maturity  practiced 
the  most  odious  and  detestable  libidinousness,  and  justified 
it  by  a  melange  of  biblical  lore  and  obscenity,  thus  attesting 
that  a  moral  pendulum  which  abjures  the  law  of  gravitation, 
and  swings  in  the  reach  of  super-excellence,  will  also,  on  the 
rebound,  attain  the  antipodes  of  its  aspired-to  perfection.  No 
class  of  men  were  ever  so  extreme  in  licentiousness  as  the 
popes  of  the  middle  ages,  consecrated  to  celibacy ;  no  rake  is 
so  utterly  void  of  a  moral  sense  as  one  who  was  an  anchorite 
in  his  youthful  prime.  By  multiplying  and  intensifying 
crimes,  moral  and  other,  we  multiply  and  intensify  criminals ; 
by  making  an  outlaw  of  divorce,  we  accelerate  its  rapid  career^ 
and  increase  the  worshippers  at  its  shrine.  As  bad  as  divorce 
is,  it  would  be  much  worse  if  there  was  either  none,  or,  it  was 
seriously  restricted ;  there  would  be  untold  and  utterable 


350  MARBIAGE  AND  DIVOECE. 

marital  misery  and  floods  of  licentiousness,  where  now  are 
comparative  rills.  The  flagitiousness  of  South  Carolina 
politics  is  an  index  of  its  morals ;  in  point  of  fact,  it  was  the 
home  alike  of  the  duellist,  the  slave  propagandist  and  the 
milliner,  its  political  immorality  was  the  entering  wedge  of 
our  great  rebellion ;  its  masses,  white  and  black,  were  and  are 
mudsills,  while  a  mere  few  of  the  patricians  revel  in 
luxury  and  deportment.  It  is  an  abnormal  and  unwhole- 
some society,  sui  generis  as  to  discomfort  of  politics  and 
morals.  And  it  is  the  only  State  which  is  hermetically 
sealed  up  against  divorce.  Of  course,  the  lack  of  divorce 
has  nothing  to  do  with  its  severe  caste  and  bankruptcy  of 
political  ethics ;  but  its  lack  of  political  and  social  progress 
are  alike  exemplified  in  its  retention  of  men  and  women  in 
the  matrimonial  dungeon  of  a  century  since,  and  in  its  in- 
auguration of  a  government  of  the  enlightened  nineteenth 
century  on  the  corner-stone  of  human  slavery.  In  the  cal- 
low States  of  the  frontier,  the  divorce  law  and  practice  is  lax 
and  reprehensible.  Its  population  consists  of  immigrants, 
some  of  whom,  fleeing  from  marital  slavery,  desire  a  speedy 
release,  and  are  enabled  to  impress  their  wishes  on  the 
statute  books.  But  not  only  do  their  own  citizens  obtain 
divorces,  but  citizens  of  other  States  also  go  through  the 
forms  thereof  in  fraud  of  the  laws  of  their  domicil,  and  thus 
lay  the  foundation  for  serious  evils  and  complications  in  the 
near  future.  If  all  States  would  make  it  a  felony  for  its 
citizens  to  go  to  another  State  in  order  to  procure  a  divorce, 
it  would  be  salutary.  They  do  punish  bigamy  and  adultery, 
committed  on  the  foundation  of  a  spurious  divorce,  but  they 
fail  to  reach  many  cases.  It  is  only  when  some  irate  hus- 
band, wife  or  friend  chooses  to  put  the  law  in  motion,  that 
punishment  ensues. 

The  prohibition,  paucity,  or  plethora  of  divorces  in  a  com- 
munity, affords  no  gauge  of  its  public  or  private  morality. 
No  legislature  in  the  whole  Union  has  been  so  flagitious  as 
that  of  New  York,  where,  for  years,  Boss  Tweed,  the  Albany 


THE  ETHICS  OF  DIVOKCE.  351 

regency,  and  Tammany,  held  autocratic  sway ;  and  of  whose 
favors  Jay  Gould  and  the  "  Erie  "  gang  were  regular  custom- 
ers ;  yet,  it  has  always  been  austere  in  its  social  morals ;  in 
point  of  fact,  it  has  the  most  puritanical  divorce  law  of  any 
State,  which  has  any.  It  will  not  be  alleged  that  the  Dako- 
tas  are  immoral  States,  yet  divorce  pilgrims  wend  their  ways 
thither  in  solemn  procession,  from  all  parts  of  the  Union, 
No  responsible  power  has  ever  taken  this  important  subject 
under  serious  consideration ;  no  State  constitution  has  ever 
considered  it  in  the  sense  of  limitation  or  regulation,  but 
each  State  has  adopted  a  policy  of  its  own,  frequently  widely 
different  from  other  State  policies  similarly  situated,  and  to 
these  policies,  whether  ill  or  salutary,  they  have  tenaci- 
ously adhered,  until,  in  some  flagitious  cases,  they  have 
been  driven  away  at  the  demand  of  decency.  No  test  of 
morality  is  made  by  the  "divorce"  institution.  In  South  Car- 
olina, they  have  none;  in  Massachusetts,  many;  in  the 
palmy  days  of  "Utah"  divorces,  its  patrons  were  exclusively 
Gentiles  from  the  Aroostook  to  the  Eio  del  Norte,  and  no  Mor- 
mon's name  stained  its  polluted  pages.  I  repeat  what  I  have  said 
elsewhere :  there  is  no  immorality  or  even  inexpediency  in  an 
honest  divorce ;  and  the  efforts  of  society,  to  do  any  good, 
should  not  be  directed  against  divorce,  as  an  institution, 
but  against  spurious  and  fraudulent  divorces,  and  also  against 
the  fundamental  causes  for  divorce. 

In  its  best  and  normal  estate,  the  marital  condition  re- 
quires that  the  parties  shall,  as  a  rule,  live  together,  and  not 
apart.  Such  was  the  case  in  the  no-divorce  days.  Such  is  not 
the  case  now.  When  ninety  per  cent,  of  our  people  lived 
on  independent  farms,  the  causes  for  divorce  were  reduced  to 
a  minimum.  When  at  least  twenty  per  cent,  of  our  married 
men  scarcely  know  their  families,  being  usually  absent  from 
them,  causes  for  divorce  are  inevitable  from  that  cause,  and, 
in  the  structure  and  practice  of  society  otherwise,  lie  many 
other  causes.  In  looking  over  the  dramatic  papers,  I  find 
that  Shakespeare,  Otway  and  the  playwrights  of  the  chaste 


352  MABRIAGE  AND  DIVORCE. 

drama  are  entirely  banished,  while  the  "  society  "  dramas, 
written  by  Ouida,  Zola,  Dumas  and  other  apostles  of 
nastiness,  are  regnant,  and  in  order  to  spice  and  interlard  the 
volumes  of  stage  wretchedness,  caused  by  adultery  and  such 
like,  the  bewitching,  "  naughty,  but  nice/'  leg  shows  are  plen- 
tifully strewn  between.  Nothing  attests  the  spirit  of  the  age 
and  decadence  of  morals  to  better  advantage.  It  holds  the 
mirror  up  to  nature  in  this,  as  well  as  other,  phases.  Facilis 
descensus  averni,  in  this,  as  in  other  things  :  and  even  of  a  more 
depraved  taste,  is  the  exhibition  of  the  professional  beauty, 
and  the  prize  fighter  of  the  latter-day  drama.  When  one  of 
the  former  gets  sufficiently  soiled,  she  either  goes  to  England 
and  receives  the  imprimatur  of  the  Prince  of  Wales,  or  some 
other  titled  noodle ;  else  gets  knocked  out  by  her  husband  in 
a  nasty  divorce  court,  and  is  then  ready  for  business.  "How 
do  you  like  the  Prince  of  Wales  ?"  was  asked  of  a  debutante, 
for  publication :  "  Oh !  ever  so  much,"  was  the  ingenious 
reply.  "  He's  so  JOLLY."  That  was  enough ;  thenceforth 
her  fortune  was  assured,  for  every  one  wanted  to  see  a  female 
who  could  affirm  that  the  prince  was  jolly,  that  term  not 
meaning  what  it  once  did ;  and  whether  a  prize-fighter  licks 
or  gets  licked,  he  is  sure  of  a  crowded  house. 

What  will  be  the  round-up  of  this  eclipse  of  decency  can- 
not be  affirmed,  but  it  can  be  affirmed,  that  it  is  the  hot-bed 
to  produce  divorce  crops,  and  that  the  latter  is  not  the  cause, 
but  the  effect,  of  the  pruriency  and  license  of  the  age. 

In  any  table  of  divorce  statistics  that  one  may  scan,  it 
will  appear  that  the  causes  for  divorce,  alleged  by  females, 
are  cruelty,  drunkenness  and  desertion,  while  the  cause 
avouched  by  males  is  adultery.  Men  commit  adultery  fre- 
quently enough,  but  will  not  tolerate  a  single  lapse  in  their 
wives.  They  probably  should  not,  but  they  should  be  without 
the  same  sin  themselves.  One  of  the  most  consummate 
lechers  of  Central  Illinois,  returned  from  the  war  to  find 
that  his  wife  had  gone  wrong  in  his  absence.  He  promptly 
got  a  divorce  and  the  custody  of  their  two  little  boys,  whom  he 


THE  ETHICS  OF  DIVOKCE.  353 

proposed  to  at  once  remove  to  the  far  West,  but  as  a  favor  to 
a  broken-hearted  mother,  the  husband  allowed  them  to  spend 
the  last  night  with  her  who  had  undergone  travail  for,  and 
given  them,  life.  He  occupied  the  adjacent  room.  He  nar- 
rated the  circumstances  to  me.  He  said  that  the  agonized 
mother  held  these  children  on  her  lap,  or  kneeled  down  with 
them  and  supplicated  God  to  not  separate  them,  then  became 
frantic,  hysterical,  wild,  tore  her  hair,  shrieked,  fondled  her 
precious  children  to  her  bosom  over  and  over  again,  and  in 
the  morning  was  torn  away  from  them  by  muscular  force. 
And  what  dread  crime  deserved  so  severe  a  punishment? 
The  unpardonable  marital  sin — the  same  he  admitted  to  me 
he  had  committed  hundreds  of  times.  But  she  had  eaten  of 
the  forbidden  fruit,  and  must  therefore  die. 

A  woman,  however,  cannot  endure  cruelty  and  desertion. 
She  is  entitled  to  protection  and  companionship,  and  when 
these  are  wrested  from  her,  she  ought  to  have  redress.  Ne- 
cessity demands  it.  Morality  demands  it.  The  divorce  law 
is  not  accountable  for  a  strong  brute  beating  a  frail  woman 
whom  he  has  sworn  to  cherish  and  protect,  nor  yet  is  it  re- 
sponsible for  one  who,  having  undertaken  to  care  for  her,  has 
left  her  to  perish  or  suffer :  and  a  law  which  furnishes  her 
even  an  imperfect  relief,  is  a  needed  and  beneficial  law. 

I  have  been  brought  face  to  face  with  cases  where  a  wife 
found  a  more  desirable  and  apt  affinity,  and  desired  to  put 
off  the  old  love  in  order  that  she  might  put  on  the  new. 
That  certainly,  if  there  is  no  other  cause,  it  would  ap- 
pear, should  be  reprobated  and  discouraged.  I  think  it 
ought,  certainly,  but  in  the  cases  I  have  known,  I  know 
of  a  verity  that,  unless  a  separation  was  had  for  an  insuffi- 
cient cause,  an  emphatic  cause,  viz. :  adultery,  would  soon 
exist,  for  a  woman  in  love  will  not  usually  be  balked  of  her 
desire  by  the  inefficient  ukase  of  a  divorce  law.  While  not 
now  advocating  anything,  I  state  as  facts,  within  my  own 
personal  knowledge,  that  several  of  the  happiest  marriages  I 
have  known,  have  been  between  parties  wrongly  paired  and 


354  MARRIAGE  AND  DIVORCE. 

mated  in  the  first  instance,  but  truly  mated  after  a  divorce 
had  secured  them  their  liberty.  Would  not  Felicia  Hemans 
have  been  happier  divorced,  than  as  she  was  ? 

The  pathetic  life  romance  of  Abby  Sage,  who  first  married 
an  entirely  unsuitable  man,  and  afterward  found  Albert  D. 
Eichardson,who  had  the  same  pursuits,  tastes,  style,  and  am- 
bition, will  occur  at  once.  There  was  nothing  in  common 
between  her  and  McFarland,  except  the  conventional  tie,  which 
authorized  him  to  indulge  in  the  pleasant  pastime  of  abus- 
ing her ;  there  was  everything  in  common  between  her  and 
Kichardson,  and,  although  he  died  in  one  day  after  their 
marriage,  she  abjured  all  marital  projects  thenceforward,  and 
revered  her  true  husband's  memory  as  her  sole  duty  and 
wish  thenceforward,  through  life. 

A  girl  of  sixteen  may  chance  to  select  her  proper  affinity, 
but  it  may  also  occur,  that  she  may  make  the  most  unwise 
choice ;  of  course  she  must  be  held  to  it,  if  exterior  propriety 
and  sanctity  holds  sway,  but  if  this  unfortunate  selection  gets 
drunk,  is  cruel,  deserts  her,  or  does  anything  equally  flagitious, 
it  would  seem  that  Providence  has  opened  the  net  for  the 
escape  of  this  imprisoned  child  from  the  snare  of  the  fowler. 
Divorce  frequently  wears  the  garb  of  the  infernal  pit,  but  it 
is  also  frequently  attired  in  the  white  robes  of  an  angel  of 
succor  and  deliverance. 

There  are  instances  of  "jolly"  wives,  who  shamelessly, 
and  with  scarcely  a  gossamer  veil  of  secrecy,  consort  with 
some  paramour,  and  there  are  plenty  of  shameless  men  who  are 
parties  to  one  notorious  liason  after  another.  For  these 
moral  derelictions,  surely  the  divorce  law  is  not  responsible ; 
and  the  severest  casuist,  who  holds  to  the  morality  taught  by 
our  Saviour,  could  make  no  valid  objection  to  a  law  which 
would  allow  a  decent  person  to  cut  loose  from  so  unsavory  a 
partner. ' 

I  can,  myself,  easily  recall  the  time  when  the  individuality 
of  the  wife  was  ignored  and  submerged :  both  husband  and 
wife  being  one,  and  the  husband  posing  individually  as  the 


THE  ETHICS  OF  DIVORCE.  355 

one.  In  those  halcyon  days,  there  was  written  on  the  door  of 
many  and  many  a  home,  but  visible  only  to  the  wife,  the 
doom,  "All  hope  abandon,  ye  who  enter  here."  If  the  hus- 
band chose  to  be  kind,  it  was  well ;  if  he  preferred  to  be  bru- 
tal, it  was  ill,  and,  although  there  might  have  been  laws  of 
divorce  on  the  statute  books,  they  were  rarely  enforced.  So- 
ciety was  in  better  form  and  more  solemn  than  it  is  now,  but 
the  joy s  and  rights  of  women  were  comprised  within  the  senti- 
ments of  this  verse : 

The  rights  of  woman!    What  are  they? 
The  right  to  labor,  love  and  pray, 
The  right  to  weep  with  those  who  weep, 
The  right  to  wake  when  others  sleep. 

The  right  to  dry  the  falling  tear, 
The  right  to  quell  the  rising  fear, 
The  right  to  smooth  the  brow  of  care 
And  whisper  comfort  in  despair. 

The  right  to  watch  the  parting  breath, 
To  soothe  and  cheer  the  bed  of  death; 
The  right,  when  earthly  hopes  all  fail, 
To  point  to  that  within  the  vail. 


The  right  the  wanderer  to  reclaim, 
And  win  the  lost  from  paths  of  shame. 
The  right  to  comfort  and  to  bless 
The  widow  and  the  fatherless. 

The  right  the  little  ones  to  guide 
In  simple  faith  to  Him  who  died. 
With  surest  love  and  gentle  praise, 
To  bless  and  cheer  their  youthful  days. 

The  right  the  intellect  to  train, 
And  guide  the  soul  to  noble  aim. 
Teach  it  to  rise  above  earth's  joys, 
And  wing  its  flight  for  heavenly  joys. 

The  right  to  live  for  those  we  love, 
The  right  to  die  that  love  to  prove; 
The  right  to  brighten  earthly  homes 
With  pleasant  smiles  and  gentle  tones. 


356         ,  MAERIAGE  AND  DIVOKCE. 

Are  these  thy  rights?    Then  use  them  well. 
Thy  silent  influence  none  can  tell. 
If  these  are  thine,  why  ask  for  more? 
Thou  hast  enough  to  answer  for. 

Are  these  thy  rights?    Then  murmur  no* 
That  woman's  mission  is  thy  lot. 
Improve  the  talents  God  has  given. 
Life's  duty  done,  thy  rest  is  Heaven. 

In  other  words :  the  only  right  a  woman  has,  is  to  be  a 
household  drudge  on  earth :  with  a  prospect  of  reward  there- 
for, hereafter. 

John  A.  St.  John  thus  attests  his  opinion :  "In  all  wise 
systems  of  legislation,  there  should  exist  a  reasonable  facility 
for  divorce,  as  much  at  least  for  the  woman's  sake  as  for  the 
man's.  But  while  the  law  favored  divorce,  education  should 
be  inimical  to  it.  All  the  tendencies  of  society  should  be  to 
give  stability  to  the  unions  of  affection.  All  the  laws  of  the 
state  should  favor  the  dissolution  of  union  founded  on  any- 
thing else.  Wherever  marriage  is  indissoluble,  society  is 
compelled  to  tolerate  great  corruption  of  manners,  for  which 
reason  all  Roman  Catholic  countries  exhibit  less  respect  for 
the  marriage  vow  than  do  Protestant  countries.  Without 
perceiving  it,  they  who  teach  that  marriage  is  indissoluble, 
only  repeat  the  primitive  law,  that  the  two  sexes  were  made 
indiscriminately  for  each  other.  *  *  To  render  marriage  an 
union  of  love,  you  must  enable  it  to  cease  with  the  feeling  on 
which  it  is  based.  An  union  of  hatred  is  disagreeable  to  civil 
society,  which  thus  flies  in  the  face  of  nature  by  yoking  to- 
gether what  God  intended  should  exist  apart.  -*  *  God  is  love, 
and  joins  only  by  the  link  of  affection.  We  are  guilty  of 
impiety  when  we  attribute  to  him  those  connections  which 
exist  in  base  interest,  in  calculations  of  conscience,  or  any 
consideration  whatever  but  simple  and  pure  affection."  And 
Westbrook,  who  gave  much  thought  to,  and  wrote  a  treatise 
on,  the  subject,  says :  "To  chain  two  human  beings  fast  to 
each  other's  side  against  the  perpetual  protest  of  galled  and 


THE  ETHICS  OF  DIVORCE.  357 

wounded  human  nature,  is  an  offence  at  which  angels  weep. 
The  great  indifferent  public  have  no  right  to  say  either  on  the 
basis  of  any  statute  law,  or  on  the  deeper  basis  of  any  popular 
sentiment,  or  on  the  still  deeper  basis  of  any  supposed 
religious  tenet,  that  any  two  individuals,  man  and  woman, 
shall  live  together  as  husband  and  wife  against  the  inward 
protest  of  their  own  individual  souls,  derived  from  whatever 
source ;  based  on  whatever  foundation,  sanctioned  by  what- 
ever tradition,  such  a  legalized  tyranny  is  unworthy  of  a 
Christian  civilization,  shamefully  perverts  the  fundamental 
teachings  of  Christianity,  and  destroys  the  sacred  claim  of 
religion  to  the  reverence  of  mankind. "  Again  he  says : 
"Divorce  amensa  etthoro  is  a  device  of  the  medieval  clergy  of 
the  Eoman  Catholic  church — a  stratagem  of  the  Canon  law 
to  retain  men  subject  to  its  authority  is  most  unnecessary 
and  is  characterized  by  cruelty  and  wrong,  and  is  known  to 
be  productive  of  evil  too  monstrous  to  be  mentioned.  To 
compel  a  virtuous  woman  to  seek  such  a  separation,  with  so 
many  evils  and  embarrassments,  or  to  remain  in  the  custody 
of  an  abusive,  drunken  brute,  sharing  his  disgusting  couch  as 
the  bloated  wretch  returns  from  his  nightly  debauch  to 
threaten  and  outrage  her — a  torture  surpassing  the  scourging 
of  the  lash — is  a  form  of  cruelty  that  cannot  be  contemplated 
with  calmness.  A  state  that  offers  no  permanent  relief  by 
law  for  a  refined  and  virtuous  woman  thus  suffering,  and  will 
not  even  acknowledge  the  validity  of  a  divorce  she  may  have 
been  compelled  to  seek  in  another  jurisdiction  because  she 
could  not  lawfully  get  it  in  her  own  home,  is  not  worthy  to  be 
called  a  free  commonwealth. 

The  wife  of  the  author  of  "Paradise  Lost"  deserted  him 
while  he  was  yet  comparatively  a  young  man,  and  he  was 
obliged  to  live  single  the  rest  of  his  days.  No  wonder  he  was 
an  advocate  of  divorce,  even  ia  a  country  which  did  not 
allow  it  except  by  act  of  Parliament.  From  a  lengthy  mono- 
graph written  by  him  on  that  subject,  I  make  the  following 
extracts  :  "What  thing  more  instituted  to  the  solace  and  de- 


358  MARRIAGE  AND  DIVOKCE. 

light  of  man  than  marriage  ?  *  *  *  And  yet  the  misin- 
terpreting of  some  scripture  *  *  *  hath  changed  the 
blessings  of  matrimony  into  a  familiar  and  cohabiting  mis- 
chief, at  least  into  a  drooping  and  disconsolate  household 
captivity,  without  refuge  or  redemption.  *  *  *  Now  if 
any  two  be  handed  into  the  church,  and  have  tasted  in  any 
sort  the  nuptial  bed,  let  them  find  themselves  never  so  mis- 
taken in  their  dispositions,  through  any  error,  concealment, 
or  misadventure,  that  through  their  different  tempers, 
thoughts  and  constitutions,  they  can  neither  be  to  one  an- 
other, a  remedy  against  loneliness,  nor  live  in  any  union 
or  contentment  all  their  days :  yet,  they  shall  be  made  spite 
of  antipathy  to  fadge  together.  *  What  a  calam- 

ity is  this !"  Again  he  says :  "What  a  violent  and  cruel 
thing  it  is  to  force  the  continuing  together  of  those 
whom  God  and  nature  in  the  gentlest  end  of  marriage  never 
joined.  *  *  Marriage  is  a  covenant,  the  very  being  where- 
of consists  not  in  forced  cohabitations  and  counterfeit  per- 
formance of  duties,  but  in  unfeigned  love  and  peace.  Love 
in  marriage  cannot  live  nor  submit,  unless  it  be  mutual,  and 
when  love  cannot  be,  there  can  be  left  of  wedlock  nothing 
but  the  empty  husks  of  an  unholy  matrimony,as  undelightful 
and  unpleasing  to  God  as  any  other  kind  of  hypocrisy.  *  * 
Bentham  says :  "A  condition  requiring  the  continuation 
of  marriage  notwithstanding  a  change  in  the  feelings  of  the 
parties  is  absurd,  shocking  and  contrary  to  humanity." 
Alex.  Von  Humboldt  says :  "Marriage  having  this  peculiarity, 
that  the  objects  are  frustrated  when  the  feelings  of  both  par- 
ties are  not  in  harmony  with  it,  should  require  nothing  but 
the  declared  will  of  either  party  to  dissolve  it."  From  Miss 
Charlotte  Bronte,  we  have  this:  "When  the  wife's  nature 
loathes  that  of  the  man  she  is  wedded  to,  marriage  must  be 
slavery :  against  slavery,  all  right  thinkers  revolt,  and  tho' 
torture  be  the  price  of  resistance,  torture  must  be  dared :  tho* 
the  only  road  to  freedom  be  thro'  the  gates  of  death,  those 
gates  must  be  passed,  for  freedom  is  indispensable." 

[THE  END.] 


INDEX. 


A. 

Absence,  Doctrine  of 108 

Actors,  About  Domicil  of 245 

Adultery,  Definition  of 114 

As  Ground  for  Divorce 115 

As  to  Proof 117 

In  England,  Custom  to  Ask  Opinion  of  Witness  as  to:  not 

so  in  America 280 

Where  Divorce  granted  for  Wife's-Husband  will  have  Chil- 
dren  314 

Ages  of  Legal  Consent  in  Various  States 54 

Agreement  to  Marry,  is  not  Marriage 51 

Alabama,  Statutory  Provisions  Concerning  Divorce 93 

Alimony  is  an  Ordinary  Incident  of  a  Divorce^Suit. . .  ^ 282 

Different  Kinds  of I. ~ 7.  ..'.302 

Incident  to  a  Divorce 303 

Circumstances  taken  into  account  in  Determining 303 

Amount  usual  to  allow 364 

Court  always  Open  to  Hear  Motions  Concerning 305 

May  be  Increased  or  Diminished 305 

No  Settled  Rule  as  to  Amount  of 306 

Conflict  of  Authority  as  to  Whether  Remarriage  Stops 306 

As  a  Rule,  Courts  cannot  Allow  Gross  Sum  for 306 

No  Extra-Territorial  Force  to  ex  parte  Decree  for. . .  .306-307 

No,  except,  pendente  lite,  allowed  for  Void  Marriage 306 

Continued  when  Appeal  Taken 306 

None  Allowed,  if  Living  with  Paramour 306 

Small  Allowance  During  Pendency  of  Suit 307 

Allowance  of  One-fifth  of  Joint  Income  Sometimes 307 

In  Some  States,  Husband  may  have  Alimony 308 

Sometimes  Allowed  in  Ordinary  Chancery  Jurisdiction 308 

Answer  in  a  Divorce  Suit 276 

Form  of,  in  a  Divorce  Suit 295 

Arizona^  No  Ceremony  of  Marriage  Necessary  in 37 

Statutory  Provisions  Concerning  Divorce 99 

Arkansas  Declares  Marriage  a  Civil  Contract  Merely 53 

Statutory  Provisions  Concerning  Divorce 95 


360  INDEX. 

Athenians,  Divorce  Law  and  Practice  Among 77 

Austria,  Marriage  and  Divorce  Laws  of 197 

B. 

Bacon,  Description  of  Marriage 36 

Baden,  Divorce  Laws  of 201 

Bastards,  South  Carolina  Approves  Law  to  Support 8 

Tendency  of  Law  to  Legitimize 315 

Belgium,  Divorce  Laws  of 197 

Bentham,  Jeremy,  on  Divorce 358 

Bigamy,  Conviction  for,  in  New  York,  although  Party  Legally  Di- 
vorced in  Ohio 219 

May  be  Committed,  despite  Dakota  Divorce 257 

Harmless,  if  Unpunished 257 

Parties  Saved  from  Punishment  by  Mutual  Guilt  of  Parties 

or  Lenity  of  Innocent  One 257 

How  to  Escape  Technical,  after  Fraudulent  Marriage 268 

Instances  of  Technical,  in  Different  States 271 

Bills  in  Divorce,  Forms  of 288-293 

Blackstone,  Concerning  Law  of  Marriage 36 

British  Columbia,  Divorce  Law  of 206 

C. 

California,  Statutory  Provisions  Concerning  Divorce 100 

Canada,  Divorce  Laws  of 195 

Caswell  v.  Caswell.  120  111.,  377,  Statement  Concerning 286 

Catholic  Church,  Abhors  Divorce 7 

Holds  Marriage  to  be  a  Sacrament 40 

Regulations  as  to  Marriage 59 

Disallows  of  Divorce 77 

Cecrops,  King  of  Athens,  First  Denominated  Marriage  to  be  Civil 

Contract 33 

Ceremony,  Form  of 66 

Chicago,  as  a  Divorce  Jurisdiction 83 

Early,  as  a  Place  for  Flagitious  Divorces 255-6 

Especial  Practice  of  Divorce  in 284 

Children  Among  the  Romans , 24 

Under  Seven,  Incompetent  to  Marry 42 

Of  Divorced  Parents,  cannot  Interfere  in  Suit 232 

Custody  of 283 

About  Legitimacy  of,  in  Nullity  Suits 309 

"     Divorce    " 309  et  sup. 

Of  Divorced  Parties  do  not  Lose  Rights  as  Heirs 315 

Tendency  of  Law  is  to  Legitimize 315 

Mode  of  Asserting  Heirship 315 

Chinese  and  Whites,  Marriage  between 141 


INDEX.  361 

Chloral  Habit,  not  Cause  for  Divorce 131 

Church  Authorities  Divided  as  to  Subject  of  Divorce 76 

Catholic,  Disallows  of  Divorce 77 

Client,  should  Deal  Frankly  and  Disingenuously  with  Counsel 279 

Code  Napoleon,  Allows  Divorce 77 

Collusion  between  Parties  Bars  Divorce 146 

General  Doctrine  of 146 

Notable  Instance  of,  in  Danforth  Case 259 

Colorado,  Marriage  Denned  as  a  Civil  Contract  in 53 

Statutory  Causes  for  Divorce 98 

Divorce,  Result  of 260 

Common  Law  Marriage  in  Me.,  Md.,  Mass.,  N.  C.,  Tenn.,  Conn.,  Del. 

and  Ky 37 

Common  Law  Marriage  (Concerning) 38 

Rude  Contracts  of 38-9 

Instances  of 41 

Danger  of  being  Entrapped  in 259 

Condition,  Original,  on  Rescission  of  Divorce  Contract,  Parties  can- 
not be  Restored  to  their 318 

Condonation,  General  Doctrine  of 148  et  sup. 

Congress,  Law  of,  as  to  Authentication  of  Records 219 

Connecticut,  Common  Law  Marriage  not  Good  in 37 

Statutory  Provisions  Concerning  Divorce 88 

Connivance,  General  Doctrine  of 150 

Consanguinity,  List  of  Persons  Included  in 55  et  sup. 

Consent,  Age  of  Legal,  14  in  Male.  12  in  Female 42 

Mutual,  Necessary  to  Valid  Marriage 226 

Constitutional  Provisions  about  Judgments  of  Other  States 219 

Construction  of  Act  as  to  Bigamy 269 

Contract  of  Marriage,  Breach  of  Promise  of 347 

Conviction  of  Crime,  as  Cause  for  Divorce 142 

Co-respondents  Joined  in  England  and  Some  States 277 

Costs,  Co-respondents  Sometimes  Forced  to  Pay 277 

Courts,  not  Bound  by  Averment  of  Jurisdiction  of  Another  Court. .  .215 
Every  Person  Entitled  to  his  Day  in,  before  he  can  be  Bound,263 

Court,  Practice  and  Precedents 272 

Terms  of,  in  Chicago 285 

Rule  of,  in  Contested  Case 287 

Of  the,  in  Divorce  Suits 299 

Various  Names  of,  for  Divorce  Suits 299 

Crime  of  Bigamy,  how  Averted  after  Fraudulent  Divorce 215 

Cross  Bill,  should  be  Filed,  Simultaneously  with  Answer 280 

May  be  Filed  by  Defendant 282 

Cruelty,  as  Cause  for  Divorce 118 

Curtesy,  Husband's  Right  as  Tenant  by,  Ends  with  Divorce 316 

Custody  of  Children  in  Divorce  Suit 277 


362  INDEX. 

D. 

Dakotas,  Statutory  Provisions  Concerning  Divorces  in 98 

As  locus  in  quo  for  Fraudulent  Divorces 257 

Dakota  Divorce,  Results  of 259 

How  to  Plead  to  the  Jurisdiction 263 

May  be  Fraudulent  even  when  Both  Parties  Appear.264 
Danger  of  Prosecution  for  Bigamy,  Relying  on  Fraudulent  Divorce. 257 

Being  Entrapped  into  a  Common  Law  Marriage 259 

Which  Bigamists  are  under 259 

Davis,  David,  Judge.  Sensible  Views  Concerning  Divorce 80 

Decree  of  Divorce,  Void  if  Court  had  no  Jurisdiction  over  Parties. .  .215 

Decree  in  One  State,  Effect  of,  in  Another 216 

Decree  of  Divorce  on  Substituted  Service,  Effect  in  Another  State. . 

216  et  sup. 

Decree,  Fraudulent,  Concerning 231 

Effect  of  Foreign 266 

In  a  Divorce  Suit 283 

Form  of,  in  Divorce  Suit 291 

Obtained  by  Fraud  is  Void,  and  Changes  no  Status 316 

Fraudulent,  cannot  be  known  till  Adjudication 316 

Don't  Gather  Strength  by  Efflux  of  Time 317 

Defamation,  Public,  as  Cause  for  Divorce 143 

Defence,  Sham,  Considered 260 

Defences  in  Divorce  Proceedings 144 

Delay  in  Bringing  Divorce  Suit 154 

Delaware,  Common  Law  Marriage  not  Good  in 37 

Statutory  Provisions  Concerning  Divorce 90 

Delicacy  should  be  Observed  in  Divorce  Proceedings 279 

Denmark,  Divorce  Laws  of 201 

Depositions  may  be  taken  in  Divorce  Proceeding 282 

Derivative  or  Unwritten  Law \ 288 

Deserted,  When  Husband  has,  Wife  may  Acquire  Separate  Domicil.  .230 

Desertion,  as  Ground  for  Divorce 129 

Requisites  to ,  .129 

Differences  between  "Utah"  and  "Dakota"  Decrees 258 

Dist.  of  Columbia,  Statutory  Provisions  about  Divorce 90 

Divorce  should  have  Candid  and  Dignified  Discussion 7 

Is  firmly  Entrenched  in  Society 7 

Is  acted  on  by  Lawmakers  and  Courts 7 

Catholic  Church  Abhors  it 7 

South  Carolina  will  not  Tolerate  it 8 

Changed  Circumstances  beget  Cause  for 10 

Summary  of  Causes  for  Increase  of  Divorce 15 

Preliminary  Remarks  Concerning 71 

Classification  of  Subjects  under 72 


INDEX.  363 

Divorce,  Jewish  Practice  Concerning 72 

Practice  in  Rome  Concerning 72  et  sup. 

None  in  England  except  for  Adultery  prior  to  1858 75 

None  in  Scotland  except  for  Adultery  prior  to  1861 75 

Great  Increase  within  few  Past  Decades 75 

Reform  should  be  of  Cause  for  Divorce,  and  not  Effect 75 

Under  Turkish  Administration,  three  Kinds 75 

Pagans,  Mohammedans,  Jews  and  Greeks,  one  Kind 75 

Under  Mosaic  Dispensation,  Method  of 75 

Egyptian  Laws  Concerning 76 

Athenian  Laws  Concerning 77 

Romans,  Divorce  Laws  Among 77 

Catholic  Church,  Disallows 77 

Greek  Church,  Allows 77 

Protestant  Church,  Allows 77 

Code  Napoleon,  Allows 77 

German  Empire  Allows  but  Two  Causes 77 

Law  of  England  Concerning 77 

Morality  of 78  et  sup. 

Expediency  of 78  et  sup. 

Davis,  David,  Hon.  Sensible  Views  Concerning 80 

Phelps,  Edward  J.,  Hon.  Impracticable  Views  of 82 

Chicago  as  a  "Divorce"  Jurisdiction 83 

A  Moral  Necessity 84 

"Void"  and  "Null"  Marriages 84 

A  vinculo  matrimoniiy  Definition  and  Consequences 86 

A  mensa  et  thoro,  Definition  and  Consequences 86 

Statutory  Provisions  Concerning 86  et  sup. 

Summary  of  Statutory  Causes  for 101  et  sup. 

Classification  of  Statutory  Causes  for 104  et  sup. 

Limited,  Summary  of  Causes  for 106  et  sup. 

Doctrine  of  Absence  connected  with 108  et  sup. 

Adultery  as  Ground  for 114 

Impotence  as  Ground  for 125 

Desertion  as  Ground  for 129 

Drunkenness,  Habitual,  as  Ground  for 131 

Drunkard,  Definition  of  a  Legal 132 

Fraud,  as  Ground  for 132 

Force,  "  132 

Error,  "  132 

Mistake,  '•  132 

Duress,  "  132 

Concealment  of  Prior  Unchaste  Character  of  Wife,  no 

Ground  to  Annul  Marriage 134 

Pregnancy  before  Marriage.  Cause  for  Divorce  in  some 

States..  ..134 


364  INDEX. 

Divorce,  Gross  Neglect  of  Duty  Cause  of  Divorce  in  some  States. .  .135 

Insanity  as  Ground  for  Annulling  Marriage 137 

Idiocy  "  "  "         137 

Sodomy  as  Ground  for  Divorce 138 

Intolerable  Treatment  or  Offering  Indignities  as  Ground  for 

Divorce 139 

Failure  to  Support,  as  Ground  for  Divorce 140 

Miscegenation,  as  Ground  for  Divorce 140 

Joining  of  Religious  Sect  which  denies  Obligation  of  Mar- 
riage, Cause  for 142 

Conviction  for  Crime,  Cause  for 142 

Imprisonment  for  Crime,  Cause  for 142 

Incompatibility  of  Temper,  Cause  for 142 

Public  Defamation  of  Wife,  Cause  for 143 

Defences  in 144 

Collusion  in 146 

Condonation  in 148 

Connivance  in 150 

Recrimination  in 152 

Limitation  in 154 

Laches  in 154 

Delay  in 154 

Insincerity  in 154 

Statutory  Limitations  in  bringing  Suit 155 

Foreign,  The  Doctrine  of  Foreign  Divorce 157 

Law  of  England 195 

Canada 195 

Scotland 196 

Ireland 196 

France 196 

Belgium 197 

Austria 197 

Hungary 198 

Switzerland 199 

Sweden 200 

Denmark 201 

German  Empire 201 

Baden 201 

Elsass  Lothringen 202 

Saxony 202 

Wurtemberg 202 

Prussia 203 

Hamburg 204 

Netherlands 204 

Roumania 204 

Russia..  ..204 


INDEX.  365 

Divorce  Law  of  Poland 204 

Finland 205 

Italy 205 

Nova  Scotia 205 

New  Brunswick 205 

Prince  Edward's  Island 205 

British  Columbia 206 

Utah  Law  and  Practice 207 

Jurisdiction  in 209 

Law  of  Place  of  Actual  Domicil,  Governs 2H 

Lex  Domieilii  Controls  Status  of  Person 214 

Valid,  can  only  be  had  in  place  of  Domicil 215 

Effect  of  Decree  Procured  in  One  State,  in  Another. 216  et  sup. 

Procured  upon  Substituted  Service,  Effect  of 217 

Same  Subject  Discussed 222  et  sup. 

Essentials  to  Render  a  Decree  of,  Void 228 

Invalid,  when  Obtained  beyond  Parties'  Own  Domicil 229 

Elaborate  Rules  as  to  Jurisdiction  and  Practice  in 230 

If  Either  Party  go  to  Another  State  to  get,  Void  in  State  of 

Domicil 248 

Void  in  Delaware,  Massachusetts  and  Maine  when  Citizens 

Resort  to  Another  State  to  Procure 236 

Residence  Required  for  Purpose  of  Obtaining 237 

Responsible  Advice  Needed  in  and  about 253 

Modern  Divorce   Methods  have  been  in  Vogue  now  for 

Forty  Years 254 

About  Spurious 255 

Indiana 255 

Chicago 255 

Utah 255 

Dakota 256 

Of  Non-Residents  will  not  Stand  Test  when  Tested 256 

Colorado  Divorce.  Results  of  a 260 

Dakota  Divorce,  Results  of  a 260 

Valid  where  obtained,  not  necessarily  Valid  Elsewhere 262 

Void  where  Rendered,  Void  Everywhere 262 

Decree  Unavailing,  unless  Rightful  and  Proper 264 

Necessity  of  Overruling  Fraudulent  Decree  of 267 

Mode  of  Service  in  Divorce  Suit , 275 

Copy  of  Notice  in  English  Divorce  Suit 274 

First  Steps  in  Divorce  Suit 275 

Hearing  in  Suit  for 282 

Decree  Void,  if  Court  had  no  Jurisdiction  over  Parties 284 

Will  not  be   Granted  on    Uncorroborated  Testimony  of 
Parties..  ..284 


36G  INDEX. 

Divorce  Court  has  Power  to  Vacate  Decree  of,  for  Fraud  or  Imposi- 
tion  284 

Especial  Practice  in,  in  Chicago 284 

Publication  in,  in  Chicago 284 

Chicago  Rule  of  Court  in 285 

Forms  of  Bills,  Orders,  Answers  and  Decrees  in. . .  .283  et  sup. 

Alimony,  an  Incident  to 303 

Amount  of  Alimony  on  Decree  of  Divorce 304 

Suit  Money  or  Costs  Allowed  in 308 

Ethics  of 349  et  sup. 

Difference  in  Application  for,  of  Men  and  Women 353 

Legitimacy  of  Children  in  Suits  for 309  et  sup. 

Children  of  Divorced  Parents  Remain  Heirs  at  Law 315 

Legislative 342 

Domicil,  Law  of  Place  of  Actual,  Governs  in  Divorce 213 

Definition  of 213-214 

Question  of,  Discussed 225 

Husband  may  Choose 230 

Wife  may  Acquire  Separate,  when  she  is  Deserted 230 

Law  of  Persons  Governs  as  to  Contractual  Ability  to  Marry244 

Law  of,  further,  Elucidated 244 

Of  Actors,  Traveling  Men,  Etc 245 

Requires  Time  to  Acquire 245 

Of  Married  Women  that  of  Husband,  with  Exceptions 245 

Of  Husband  and  Wife  of  Equal  Force  and  Dignity ,..  ..248 

Definition  of 254 

Divorce  in,  Valid  there,  Valid  Everywhere 254 

In  Place  Other  Than,  Invalid  Everywhere 254 

Person  Resorting  to  Place  not  his  Domicil  for  Divorce,  not 

Valid 254 

Persons  who  do    all  Business  at  their  Domicil,  also  leave 

Domicil  Frequently  for  Divorce — Solecism 254 

If  bonafide  when  Suit  Commenced,  Need  not  be    Kept  up. 280 
Domitian,  Correlative  Right  of  Divorce  of  Husband  and  Wife  under 

Law  of 76 

Dower,  Wife  could  not  be  Deprived  of,  by  Fraudulent  Divorce 265 

Wife  has  no,  in  Divorced  Husband's  Estate' 316 

Rights,  Wife  Forfeits  on  Divorce,  for  her  Misconduct 320 

Subject  of,  Generally 322 

Divorce  Bars,  unless  Saved  by  lex  rei  sitm 322 

In  Divorce  Cases,  in  only  of  Property  held  During  Cover- 
ture  323 

If  Both  Parties  Guilty  of  Misconduct,  no  Dower 325 

Statutes  have  Largely  Changed  Common  Law,  as  to  Dower.326 

Demurrer  to  Bill  for  Divorce 276 

Drunkenness,  Habitual,  as  Ground  for  Divorce. . .  .  .131 


INDEX.  367 

Duress  as  Ground  to  Annul  Marriage 132 

Duty  of  State  in  Regard  to  Fraudulent  Divorce 267 

E. 

Egypt,  Divorce  Laws  of 76 

Elsass  Lothrmgen,  Divorce  Laws  of 202 

England  Holds  Religious  Ceremony  Necessary  to  Constitute  Mar- 
riage   40 

No  Divorce  except  for  Adultery  Prior  to  Divorce  Act  of  1858  75 

Practice  Concerning  Divorce 77 

English  Divorce  Law,  not  in  our  Jurisprudence 288 

Error  as  Ground  to  Annul  Marriage 132 

Essenes,  Object  of  Marriage  of 67 

Ethics  of  Divorce 349  et  sup. 

Practice 278 

Europe,  Divorce  Laws  of 195 

Ex  parte,  Divorce  Suits,  Practice  in 282 

F. 

Failure  to  Support  Wife  as  Cause  for  Divorce 140 

Father's  Right  to  Possession  of  Child,  Paramount 314 

Fees,  Legal,  for  Marrying 67 

In  Divorce  Suits  in  Chicago 284 

Finland,  Causes  for  Divorce  in 205 

Flagitiousness  of  New  York  Legislature 350 

Florida  Courts  on  Marriage  (Mere  Contract) 36 

Statutory  Provisions  Concerning  Divorce 92 

Force,  as  Ground  to  Annul  Marriage 132 

Forms  of  Bills,  Answers,  Motions  and  Decrees  in  Divorce 288 

France,  Marriage  and  Divorce  Laws  of 196 

Fraud,  as  Ground  to  Annul  Marriage 132 

Impeaching  a  Decree  for  (instances) 218 

Vitiates  Everything,  but  no  one  can  Complain  unless  he  be 

Injured 234 

Distinction  between  Decree  Obtained  by,  and  Lack  of  Juris- 
diction in  a  Tribunal 234 

When  Both  Parties  Participate  in,  Neither  can  be  heard  to 

Attack  it  in  any  Way 235 

Stranger  to  Judgment  may  Show  it  was  Obtained  by 235 

Effect  of,  upon  Judgment 236 

Decree  of  Divorce  set  Aside  on  Account  of 286 

Fraudulent  Decree  will  not  be  Scrutinized  on  Application  of  any  Out- 
side Party 234 

Fraudulent  Divorce,  Mischief  and  Hazard  of 253 

Decree,  Reason  for  Immunity  in 263 

Easily  Set  Aside 265 

Fun,  Marriage  in,  Invalid 51 


368  INDEX. 

G. 

Gaines,  Mrs.,  Marriage  of  Parents  of 43 

Georgia,  Statutory  Provisions  Concerning  Divorce  in 92 

German  Empire,  Allow  Two  Causes  for  Divorce 77 

Law  of  Marriage  of 201 

Gentile  Population  in  Utah  weeded  out  Fraudulent  Divorces 256 

Greek  Church  Allows  Divorce 77 

Greeks,  but  One  Cause  of  Divorce  Among 75 

Gross  Neglect  of  Duty,  Cause  for  Divorce  in  Some  States 135 

Guilty  Persons  in  Divorce  Matters  are  not  Proceeded  Against 268 

H. 

Hamburgh,  Divorce  Laws  of 204 

Hearing,  in  a  Divorce  Suit 282 

Herod,  Equality  Between  Man  and  Woman  under  Laws  of,  as  shown 

by  Correlative  Rights  of  Each  to  Divorce. 75 

Home  of  Actors,  Traveling  Men,  Etc 245 

Humboldt,  von  Alex,  on  Divorce 358 

Hungary,  Marriage  and  Divorce  Laws  of 198 

Husband.  Divorce  not  Allowed  on  Uncorroborated  Evidence  of . .   .  .284 


Idaho,  Statutory  Provisions  Concerning  Divorce  in 100 

Idiocy  as  Ground  for  Divorce 137 

Illinois,  Courts  on  Common  Law  Marriage 37 

Statutory  Provisions  Concerning  Divorce 97 

Opening  Decree  of  Divorce  Obtained  on  Publication 218 

Impotence  as  Ground  for  Divorce 125 

Imprisonment  for  Felony  as  Ground  for  Divorce 142 

Incompatibility  of  Temper  as  Cause  for  Divorce 142 

not  now  an  Avowed  Cause  for  Divorce.  .283 

Indecency  of  Evidence  must  be  Tolerated 279 

Indiana  Declares  Marriage  to  be  a  Civil  Contract 53 

Statutory  Provisions  Concerning  Divorce 96 

Divorces  Reprobated 229 

Spurious  Divorces  in 255 

Incompatibility  of  Temper  once  Cause  for  Divorce  in 283 

Injunction,  Wife  may  Obtain 275 

Insanity  as  Ground  for  Divorce 137 

Insincerity  in  Bringing  Divorce  Proceedings 154 

Intolerable  Treatment  or  Offering  Indignities  as  Cause  for  Divorce.. 139 

Iowa  Declares  Marriage  to  be  a  Civil  Contract 53 

Statutory  Provisions  Concerning  Divorce 97 

Italy,  Ground  for  Divorce  in 205 


INDEX.  369 

J. 

Jactitation  of  Marriage,  Suit  for 86 

Jamesons',  Jno.  A.,  Judge,  Opinion  on  Foreign  Marriage  and  Foreign 

Divorce 157 

Criticism  thereon 188 

Jewish  Practice  Concerning  Divorce 72 

Jews  had  but  One  Kind  of  Divorce 75 

Jews,  Divorce  Among 203 

Judgment  Liens  Created  by  Husband,  Divested  as  to  Wife's  Land, 

by  Decree  of  Divorce 317 

Jurisdiction  in  Divorce  Matters 207 

Over  the  Subject  Matter 207 

Over  the  Parties 207 

A  Court's  Own  Declaration  of  Jurisdiction  not  Binding  on 

Other  Courts 215 

Not  Sustained  by  a  Residence  for  the  Mere  Purpose  of 

Obtaining  a  Divorce 215 

Of  Court  of  Another  State  may  be  Inquired  into  in  State 

where  a  Decree  is  Sought  to  be  Used 220 

Of  Foreign  Court  Discussed 220 

Elaborate  Rules  Concerning 230 

Where  there  is  None,  Usurpation  to  Act 233 

Distinction  between  no,  and  Decree  Obtained  by  Fraud.234 

If  Court  had,  Intermeddler  cannot  Interfere 235 

Objection  to,  may  be  taken  in  any  way 235 

Jurisdictional  Clause  should  never  be  Omitted  from  Bill 278 

Jus  gentium,  Law  of,  as  to  Divorce 248 

K. 

Kansas  Defines  Marriage  to  be  a  Civil  Contract 53 

Statutory  Provisions  Concerning  Divorce 98 

Kent,  Definition  of  Marriage 36 

Kentucky,  Common  Law  Marriage  not  Good  in 37 

Statutory  Provisions  Concerning  Divorce 92 

L. 

Laches,  as  to  Bringing  Divorce  Proceedings 154 

Law,  Derivative  or  Unwritten 288 

Laws,  Mode  of  Proving  those  of  Another  Jurisdiction 50 

Conflict  of,  as  to  Dissolving  Marriage 69 

Legislative  Divorces 342 

Action  of  State  Concerning 343 

Lex  domicillii  Governs  the  Status  of  the  Person 214 

In  Connection  with  Divorce 243 

As  to  Capacity  of  Parties  to  Contract 246 

Party  Relying  on,  must  Aver  and  Prove  it 50 


370  INDEX. 

Lex  fori  Governs  as  to  Grounds  for  Granting  Divorce 247 

Enforcement  of  Remedy 251 

Lex  loci  contractus,  Party  Relying  on,  must  Aver  and  Prove  it 50 

In  Connection  with  Divoice 243 

Governs  as  to  Form  of  Marriage 246 

Lex  loci  delictus  in  Connection  with  Divorce 243 

Jurisdiction  for  Divorce  in  Some  Places 251 

Lex  loci  rei  sites  Party  Relying  on,  must  Aver  and  Prove  it 50 

Applies  as  to  Immovable  Property 69 

Controls  as  to  Property 251 

Incidents  of  Rule  of 252 

Governs  as  to  Dower 322 

License,  Statutory  Provisions  Concerning 60-64 

Limitation  as  to  Bringing  Divorce  Proceedings 154 

Statutory  in  Bringing  Divorce  Proceedings 155 

"Lolleys"  Case,  Statement  Concerning 194 

Louisiana,  Declaration  about  Marriage  as  a  Contract 53 

Statutory  Provisions  Concerning  Divorce 94 

Lispendens  Applies  where  Property  is  Specifically  Designated  in  Di- 
vorce Proceedings 321 

n. 

Mahommedan,  but  one  kind  of  Divorce  among ,  75 

Maine,  Common  Law  Marriage  not  good  in 37 

Statutory  Provisions  Concerning  Divorce 86 

Marriage,  Treated  as  a  Peculiar  and  Favored  Contract 16 

It  is  however  an  Institution  of  Society 16 

Treated  as  a  Sacrament  in  Catholic  Countries 17 

Validity  of  Rites  Tried  by  Law  of  Place  where  Celebrated  19 

Held  in  R.  I.  to  be  One  of  the  Marriage  Relations 20 

Has  been  Defined  as  a  Public  Institution 20 

Husband,  Wife  and  State,  Parties  to  Marriage  Contract  . .  20 

Origin  of  Marriage  is  Contract 21 

Modes  of  Marriage  among  the  Romans 21 

Dowries  among  the  Romans 23 

Ceremony  of,  among  the  Romans 25 

Among  the  Early  Greeks 28 

Among  the  Germans. .  .rf 29 

Purchase  of,  by  the  Hebrews 29 

By  the  Mosaic  Law 30 

In  Lapland 80 

In  Greenland 30 

In  Iceland 31 

Among  the  Tartars 31 

Among  the  Circassians 31 

Among  the  Chinese 31 


INDEX.  371 

Marriage,  Among  the  Arabs 33 

In  Tonquin 33 

In  the  Pelew  Islands 33 

Among  Modern  Greeks 33 

First  Denominated  a  Civil  Contract  by  Cecrops,  King  of 

Athens 33 

In  the  Ottoman  Empire 34 

In  Russia 35 

In  Asia  and  Africa 35 

Among  the  Lapps,  and  Finns 35 

Among  the  American  Indians 35 

Made  a  Sacrament  by  Pope  Innocent  III 35 

But  Law  Writers  and  Courts  have  not  so  Held  it 35 

Blackstone's  Definition  of 36 

Reeves'  Definition  of  (Domes.  Rela.) 36 

Rutherford's  Definition  of  (Institutes) 36 

Kent's  Definition  of 36 

Bacon's  Definition  of 36 

Florida  Court's  Definition  of 36 

How  Treated  in  New  York 36 

Amount  of  Proof  of,  in  Bigamy 37 

Amount  of  Proof  of,  in  Crim.  Con 37 

How  to  Prove  Marriage 37 

Contract  of,  per  verba  de  presenti 37 

Com.  Law  in  Me.,  Md.,  Mass.,  N.  C.,  Tenn.,  Conn.,  Del., 

Ky.,  N.Y 37 

No  Ceremony  Required  in  Arizona 37 

Mode  of  Marrriage  per  verba  de  presenti 37 

Statement  of  111.  Court  about 37 

Requisites  of,  in  Pennsylvania 37 

Common  Law,  Instance  of 41 

Children  under  Seven  Incompetent  for 42 

Age  of  Legal  Consent;  14  in  Male,  12  in  Female 42 

Runaway 43 

Evading  Local  Laws  in  Order  to  Marry 43 

Certificate  of,  at  Gretna  Green 44 

Valid  at  Place  of  Celebrating,  Valid  Everywhere 44 

Invalid  at  Place  of  Celebrating,  Invalid  Everywhere 44 

Sundry  Requisites  of 45 

Concerning,  by  International  Law 46 

Definition  of,  as  used  in  Christendom 47 

Modes  of  Marriage  in  Foreign  Countries 48 

Common  Law  Marriage  (must  be  by  Mutual  Consent  of 

Parties) 49 

New  England  Idea  of  Marriage,  Divine 51  V*\ 

Common  Law 52  \ 


372  INDEX. 

Marriage,  Every  Intendment  in  Favor  of 53 

May  be  Proven  by  Reputation,  Declaration  and  Conduct 

of  Parties 53 

Valid  where  Celebrated,  Valid  Everywhere  as  to  Forms.. .  53 

Essentials  Governed  by  the  lex  domicilii 53 

Contrary  to  lex  domicilii  is  Void 53 

Good  or  not,  According  to  Place  where  Made 53 

A  Civil  Contract,  According  to  Several  States 53 

After  Divorce 64 

Validity  of,  Contracted  beyond  the  State 65 

Form  of,  Ceremony  of 66 

Null  and  Void 84 

Suit  for  Jactitation  of 86 

Nullity  of,  Statutory  Provisions  Concerning 86 

Between  Chinese  and  Whites 141 

Indians  and  Whites 141 

Foreign 157 

Law  of  German  Empire 201 

Is  a  Civil  Status 214 

Not  good  without  Mutual  Consent 226 

Each  State  has  Absolute  Control  of  Status  of  its  Citizens.  .227 
Locus  in  quo  of  the  Marriage  Governs  if  Monogamous,  Etc. 248 
Must  Occur  at  only  one  Place  and  at  a  Single  Moment  of 

Time 249 

May  be  Contracted  by  Mail 249 

Per  verba  de  presenti  takes  Place  when  Contract  Made 249 

Per  verba  de  futuro  cum  copula  takes  Place  when  Sexual 

Contact  is  first  had 250 

Napoleons  Second,  Manner  of 250 

Valid  where  Celebrated,  Valid  Everywhere 262 

Void  where  Celebrated,  Void  Everywhere 262 

Certificate  of,  no  Utility  in,  unless  Marriage  Valid 264 

Restrictions  upon,  in  Divorce  Decree,  can  be  Evaded 281 

Void  in  the  Several  States 335 

Statutory  Proceedings  Concerning  Divorce 90 

Maryland,  Common  Law  Marriage  not  good  in 37 

Massachusetts,  Common  Law  Marriages  not  good  in 37 

Statutory  Provisions  Concerning  Divorce 88 

Master  in  Chancery,  Reference  of  Divorce  Suit  to 282 

Milton  on  Divorce 357 

Michigan  Declares  Marriage  to  be  a  Civil  Contract 53 

Statutory  Provisions  Concerning  Divorce 96 

Minnesota  Declares  Marriage  to  be  a  Civil  Contract 53 

Statutory  Provisions  Concerning  Divorce 97 

Miscegenation  as  Ground  for  Divorce 140 

Mississippi  Statutory  Provisions  Concerning  Divorce 94 


INDEX.  373 

Missouri  makes  Statement  about  Marriage  Contract 53 

Statutory  Provisions  Concerning  Divorce 96 

Miscellaneous  Causes  for  Divorce 143 

Mistake  as  Ground  to  Annul  Marriage 132 

Monogamic  Principle  Obtains  in  this  Country 68 

Montana,  Statutory  Provisions  Concerning  Divorce 100 

Divorce  Suits  may  be  Tried  Privately  in 281 

Morality  and  Expediency  of  Divorces 78  et  sup. 

Motions,  Forms  of,  in  Divorce  Proceedings . , 290 

N. 

Name,  Wife  may  be  Restored  to  Maiden  or  any  Former 287 

Napoleon  Code  Allows  Divorces 77 

Napoleon's  Marriage  with  Marie  Louise 40 

Nebraska  makes  Statement  about  Marriage  as  a  Contract 53 

Negatived,  A  Defence  need  not  be,  at  first 280 

Negligence,  Each  Party  Counts  against  him  Alone 262 

Netherlands,  Divorce  Laws  of 204 

Nevada  Defines  Marriage  to  be  a  Civil  Contract 53 

Statutory  Provisions  Concerning  Divorce  in 100 

New  Brunswick,  Divorce  Laws  of 205 

New  Hampshire,  Statutory  Provisions  Concerning  Divorce 87 

New  Jersey,  Statutory  Provisions  Concerning  Divorce 89 

New  Mexico,  Makes  Statement  about  Marriage  as  a  Contract 53 

Statutory  Provisions  Concerning  Divorce 99 

New  York,  Requisites  of  Marriage  in 36 

Marriage,  how  Regarded  in 36 

Defines  Marriage  to  be  a  Civil  Contract .' 53 

Statutory  Provisions  Concerning  Divorce 89 

North  Carolina,  Common  Law  Marriage  not  good  in 37 

Statutory  Provisions  Concerning  Divorce 91 

Nova  Scotia,  Divorce  Laws  of 205 

Noyes,  Rev.  John  H.,  Lechery  of 349 

Null  Marriages 84 

Nullity  Effect  of,  of  Marriage 332 

Nullity  of  Marriage,  upon  what  Theory  Decree  of  Goes 333 

O. 

Oath  of  Defendant  Should  Be  Waived  to  Answer 280 

Ohio,  Statutory  Provisions  Concerning  Divorce 96 

Oneida  Community,  Creed  of 68 

Community,  Lechery  of 349 

Opium  Habit,  Not  Cause  for  Divorce 131 

Oregon,  Defines  Marriage  as  Merely  a  Civil  Contract 53 

Statutory  Provisions  Concerning  Divorces 96 


374  INDEX. 

P. 

Pagan  Rule,  Divorce  under 75 

Parent,  Applied  to  Court  to  annul  divorce  of  his  Son:   Refused 234 

Parents,  Character  of  in  reference  to  custody  of  children 314 

Parties  concurring  to  a  divorce  suit 233 

Outside  may  avoid  force  of  decree  collaterally 233 

Are  competent  witnesses  usually 282 

Party  can  only  take  advantage  of  voidable  or  erroneous  decree  by 

appeal,  error  or  bill  of  review 233 

Party,  no  one  but,  can  question  a  decree  of  divorce 234 

Pennsylvania,  Common  Law  Marriage  not  in 37 

Statutory  provisions  concerning  divorce 89 

Phelps,  Hon.  E.  J.  views  about  divorce 82 

Place,  Law  of  in  divorce  proceedings 243 

Plea  to  Jurisdiction  of  Court,  in  divorce  cases 275 

Plea  to  Jurisdiction  of  Court  in  divorce  cases 271 

Pleadings  in  divorce  suit 283 

Poland,  causes  for  divorce  in 204 

Policy,  as  to  a  second  marriage  after  spurious  decree 268 

Practice,  Rules  about  divorce 230 

Practice  and  Precedents  in  divorce  cases 271 

especially  in  divorce  suits 277 

generally  uniform  in  all  states 281 

under  decree  of  divorce 283 

Precedents  and  Practice  in  Courts 271 

Presumptions  Concerning  Marriage,  &c 49 

Prince  Edward's  Island,  Divorce  Laws  in 205 

Procedure,  Mode  of  in  Chicago,  in  Divorce  Cases 284 

Prohibited  Degrees,  List  of  Parties  within 55 

Promise,  Breach  of  Promise  of  Marriage 347 

Promptness  Necessary  in  Attacking  Fraudulent  Judgement 236 

Necessary  to  Vacate  Invalid  Decree 262 

Proofs  in  a  Divorce  Suit 276 

Property  Rights,  concerning '. 68 

Divorce  ends  all,  not  previously  vested 316 

Divorced  Wife  has  no  right  of  Dower  in  Husband's.316 
Property  on  Dissolution  of  Marriage,  Wife    entitled  to  immediate 

possession  of 318 

Property,  Court  may  make  a  division  of  community  property 318 

Property  Rights  Generally 319 

Property  Rights,  Divorce  affects  such  only  in  lexfori 319 

Prosecuting  Attorney  required  to  appear  and  defend  Divorce  Pro- 
ceedings in  several  states 145 

Prosecuting  Attorney  must  defend  undefended  suits  in  several  states.281 
Prudent  mode  of  action  of  persons  desiring  second  marriage  after 
fraudulent  decree . .  . .  269 


INDEX.  375 

Prussia,  Divorce  laws  of 203 

Publication,  Effect  of  substituted  service  by 220 

difference  of  views  about  decree  on  service  by 221 

New  York  view  about  decree  obtained  on  substituted 

service  by 222 

former  view  of  validity  and  force  of  decree  obtained  on 

notice  by 223 

concerning  notice  by 265 

notice  by,  not  of  highest  utility 266 

about,  in  divorce  cases , 281 

in  an  English  case ...274 

R. 

Record  in  divorce  suit,  may  be  impeached  by  evidence  aliunde 228 

Recrimination,  general  doctrine  of 152 

Reeves  Domes.  Rel.  on  marriage 36 

Reform,  divorce  should  be  of  causes  of  rather  than  effect 75 

Religious  Sect,  joining  as  cause  for  divorce 142 

Residence,  means  actual  and  bonafide;  animo  manendi 215 

temporary,  for  divorce  purposes,  reprobated 226 

required  (and  definition  thereof)  for  divorce  purposes ....  237 

required  for  divorce  in  different  states 238 

Review,  Bill  of,  in  fraudulent  divorce  suits 286 

Rhode  Island,  statutory  provisions  concerning  divorce 88 

Risks  which  will  be  taken  by  people  in  divorce  matters 267 

Romans,  freedom  of  divorces  among 77 

Rome,  Practice  as  to  divorce  in 72  et  sup 

Roumania,  causes  for  divorce  in 204 

Runaway  Marriages 43 

Rutherford's  Institutes:  on  marriage 36 

Russia,  causes  for  divorce  in 204 

Rule  of  Court  in  contested  case 287 

S. 

Saxony,  Divorce  laws  of 202 

Scandal  cannot  be  suppressed  in  divorce  suits 282 

Scotland,  no  divorce  law  for  adultery  prior  to  conjugal  rights  act  of 

1861 75 

Divorce  law  of , 196 

Scottish  Law  Magazine,  criticism  of  Judge  Jameson's  Opinion 188 

Separation  by  acquiescence  or  consent,  not  desertion 131 

when  decreed,  Father  has  right  to  custody  of  child 314 

when  parents  live  in  involuntary;  court  considers  charac- 
ter of  parents  in  awarding  custody  of  child 314 

under  a  contract 344 

under  contract,  Form  of 345 


376  INDEX. 

Service  of  process,  does  not  differ  much  in  different  states 274 

Shaker's  practiced  celibacy 67 

"Shysters,"  Divorce  should  be  avoided 253 

Sodomy,  as  ground  for  divorce 138 

Solicitor's  fee,  motion  of  wife  for 275 

Solon,  equality  of  men  and  women  by  laws  of,  as  shown  by  correlative 

rights  of  each  for  divorce 75 

South  Carolina,  does  not  recognize  divorce 8 

Statute  as  to  support  of  bastard  children 8 

Judicial  approval  of  its  recognition 8 

Marriage  likened  to  horse  trade  by  Judges  of 9 

Legalized  Divorces  of  negro  legislatures 51 

statutory  provisions  concerning  divorce 92 

m6rals  and  politics 350 

Spurious  divorces,  concerning ; 255 

State,  duty  of  in  regard  to  fraudulent  divorces 267 

Suit  money,  motion  of  wife  for 275 

and  solicitor's  fees,  how  motion  supported 275 

or  costs  allowed  in  divorce  suits 808 

only  necessary  litigation  provided  for 308 

Sweden,  Marriage  and  Divorce  Laws  of 200 

Switzerland,  Marriage  and  Divorce  Laws  of 199 

State,  has  the  right  to  declare  or  alter  the  status  of  its  citizens 214 

State,  decree  of  divorce  in  one,  effect  in  another 216 

State,  each  controls  status  of  its  citizens 232 

St.  John,  Jno.  A.,  on  divorce 356 

T. 

Tennessee,  Common  Law,  Marriage  not  good  in 37 

statutory  provisions  concerning  divorce 93 

special  statute,  interdicting  cohabitation,  etc 270 

Texas,  statutory  provisions  concerning  divorce 95 

Transcript  of  decree  in  a  divorce  suit 283 

Traveling  man,  about  domicil  of 245 

Trust  and  confidence,  must  not  be  abused  to  procure  marriage 133 

Turkish  administration,  divorce  under 75 

U. 

Unchastity,  ante  nuptial  no  ground  of  divorce 50 

Undefended  divorce  suits,  in  some  States,  must  be  defended    by 

Prosecuting  Attorney 281 

Unwritten,  or  derivative  law 288 

U.  S.  Consul,  may  perform  ceremony  of  marriage 40 

Utah  and  its  divorces 44 

statutory  provisions  concerning  divorce 101 

divorce  law  and  practice  thereunder 207 


INDEX.  377 

Utah  divorces,  reprobated 229 

as  locality  for  fraudulent  divorces 256 

V. 

Vermont,  statutory  provisions  concerning  divorce 87 

special  statute  about  polygamy 270 

Virginia,  statutory  provisions  concerning  divorce 90 

Void  marriages 84 

"Void,"  "voidable"  and  "nullity" 327 

does  not  imply  entire  nullity 327 

meaning  of  term 327 

obscurity  of  definition  of 327 

'•Void"  and  "voidable,"  distinction  between 328 

court  may  legally  declare  a  marriage  to  be 328 

an  act  may  be  void  "ab  initio"  or  "expost  facto" 329 

about  marriages,  necessity  for  spreading  it  of  record 334 

marriages  in  the  several  states 335  to  341 

W. 

Washington  (State),  defines  marriage  as  a  civil  contract  merely 53 

statutory  provisions  concerning  divorce 101 

Warrender  v.  Warrender,  leading  case  of 194 

Waste  committed  by  husband  on  wife's  lands  since  petition  for  di- 
vorce, husband  must  answer  for 317 

West  Virginia,  statutory  proceedings  concerning  divorce 91 

Wife  may  acquire  separate  domicil  for  purposes  of  divorce 230 

rights  of  in  spite  of  fraudulent  divorce 265 

may  be  restored  to  maiden  or  to  any  former  name 287 

divorce  will  not  be  granted  on  uncorroborated  evidence  of 284 

demeanor    and  behavior   will  be  considered  concerning  ali- 
mony   305 

Wisconsin,  statutory  provisions  concerning  divorce 97 

defines  marriage  to  be  a  civil  contract  merely 53 

Women,  rights  of 355 

Wurtemberg,  divorce  laws.of 202 

Wyoming,  statement  concerning  marriage  as  a  contract 53 

statutory  provisions  concerning  divorce 101 

Z, 

Zoarites,  creed  of  as  to  marriage 67 


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